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LOS  ANGELES 


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FREE  PtTBLIC  IjIBRARIT 


BY 


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i  It  must  twl  be  taken  f rum  the  Lihrary.  ^ 


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110  Washington  St.,  Bostoh. 
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A   LIST   OF   LAW   BOOKS, 


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ABBOTT  (Charles,  Lord  Tenterden).  —  A  Treatise  of  the  Law 
relative  to  Merchant  Ships  and  Seamen.  The  Eiglitli  English 
Edition,  by  William  Shee.  Eighth  American  Edition.  With  the 
Notes  of  Mr.  Justice  Story,  and  additional  Annotations,  by  Hon. 
J.  C.  Perkins.     Pioyal  8vo.     (In  Press.) 

ABBOTT  BE  OTHERS.  — Reports  of  Cases  in  Admiralty,  Ar- 
gued and  Determined  in  the  District  Court  of  the  United  States 
for  the  Southern  District  of  New  York.     Bvo $6.00 

ADMJBALTT  REPORTS  (English),  complete  series,  com- 
rwuncing  with  Marriott  and  coming  down  to  Robinson,  Vol.  III. 
10th  V^ictoria.  Edited,  with  References,  etc.,  by  George  Minot, 
Esq.     y  vols.     Bvo.     (Scarce.) 54.00 

ALLEN  (Clias.).  —  Reports  of  Cases  Argued  and  Determined  in 
the  Supreme  Judicial  Court  of  Massachusetts.  Vols.  I.  II.  III. 
IV.  V.  VI.  and  VII.    8vo.     Per  vol 5.50 

AMERICAN  RAILWAY  CASES,  a  complete  collection,  with 
Notes  and  References  to  American  Railway,  Canal,  and  Turnpike 
Cases,  by  Chauncey  Smith  and  Samuel  W.  Bates.    2  vols.     8vo.  .     lOdO 

ANDREWS    (C.  C.).  — A  Practical   Treatise  on  the    Revenue 

Laws  of  the  United  States.     Bvo 8.50 

ANGELL  (Joseph  K).  —  A  Treatise  on  the  Law  concerning  the 

Liabilities  and  Rights  of  Common  Carriers.     Third  edition.     Bvo.       6.50 


2 

ANGELL  (Joseph  K.).  — A  Treatise  on  the  Limitations  of  Ac- 
tions at  Law  and  Suits  in  Equity  and  Admiralty,  witli  an  Appen- 
dix contaiiiinfj  tlic  American  and  l"nf,disli  Statutes  of  Liniitjitions, 
and  embracing  the  latest  Acts  on  tiie  subject.  Fourth  edition, 
revised  and  greatly  enlarged.     By  John  Wilder  May.     8vo.  .    $6.50 

.  A  Treatise  on  the  Ri^ht  of  Property 

in  Tide  Waters,  and  in  the  Soil  ami  Shores  thereof.     Second  edi- 
tion.    Revised,  corrected,  and  much  enlarged.     [In  Press.) 

A  Treatise  on  the  Common   Law  in 


Kclation  to  Watercourses.     Sixth  edition.     8vo.     {In  Press.) 
A  Treatise  on  the  Law  of  Life  and 


Fire  Insurance,  with  an  Appendix  containing  forms,  tables,  etc. 
Second  edition.     8vo G.60 

ANGELL  (Joseph  K.)  and  AMES  (Samuel).  —  A  Treatise  on 
the  Law  of  Private  Corporations  Aggregate.  Seventh  edition, 
enlarged.     8vo. 6.50 

ANGELL  (Joseph  Iv.)  and  DURFEE  (Thomas).  —  A  Treatise 

on  the  Laws  of  Highways.    8vo 5.00 

BENNETT  (E.  H.)  and  HEARD  (F.  F.).  — A  Collection  of 
Leading  Cases  in  the  various  branches  of  the  Criminal  Law.  2 
vols.     8vo 12.00 

BISHOP   (Joel    P.). —  Commentaries    on    the    Criminal    Law. 

Second  edition,  enlarged.    2  vols.     8vo.  15.00 

_  ^ Treatise  on   the  Law  of  Marriage  and 

Divorce,  and  Evidence  in  Matrimonial  Suits.  2  vols.    Bvo.  Fourth 
edition,  enlarged. 15.00 

. Commentaries  on  Criminal  Procedure,  or 


the  Law  of  Pleading,  Evidence,  and  Practice  in  Criminal  Cases. 
2  vols.     8vo.     {In  Preparation.) 

BLACKWELL  (R.  S.).  —  A  Practical  Treatise  on  the  power 
to  sell  Land  for  the  non-payment  of  Taxes  assessed  thereon. 
Second  edition,  enlarged.     8vo •        .        G.OO 

BOUTWELL  (Hon.  G.  S.).  —  Manual  of  the  Direct  and  Excise 
Tax  System  of  the  United  States,  prepared  under  the  authority  of 
the  Secretary  of  the  Treasury.     8vo.      Cloth,  $1.50.    Paper,       .      1.00 

BROWN  (William).  — Reports  of  Cases  in  the  High  Court  of 
Chancery,  during  the  time  of  Lord  Chancellor  Thurlow,  and  of  the 
several  Commissioners  of  the  Great  Seal,  and  Lord  Chancellor 
Loughborough,  from  1778  to  1794,  with  tlie  Annotations  of  Mr. 
Belt  and  Mr^  Eden.     Edited  by  Hon.  J.  C.  Perkins.    4  vols.     8vo.     14.00 

BROWNE  (Causten).  —  A  Treatise  on  the  Construction  of  the 
Statute  of  Frauds,  as  in  force  in  England  and  the  United  States  ; 
with  an  Appendi.x  containing  the  existing  English  and  American 
Statutes.     Second  edition,  enlarged      8vo 6.50 

(W/rrr  (Edward).  —  Equity  Digest :  An  Index  to  all  the  Re- 
ported Cases  decided  in  the  several  Courts  of  Equity,  in  England 
and  Ireland,  the  Privy  Council,  and  the  House  of  Lords  ;  and  to 
the  Statutes  on  or  relating  to  the  Principle,  Pleading,  and  Practice 
of  Equity  and  Bankruptcy,  from  the  Earliest  Period.  New  Re- 
vised Edition,  brought  down  to  the  present  time.    4  vols.    8vo.     .     25.00 


'6 

CIRCUIT   COURT  HEP OBTS.  — First   Circuit.      18   vols. 

8vo $99.00 

Comprising  :  — 

Gallison's  Reports.     2  vols.    8vo 11.00 

Mason's           "          5     "          " 27.50 

Sumner's         "           3     "          " 16.50 

Story's             "          3     "         " 16.50 

Woodbury  and  Minot's  Reports.     3  vols.     8to.        .         .         .  16.50 

Curtis's  Reports.     2  vols.     8vo 11.00 

COLLTER  (Jobn).  —  A  Practical  Treatise  on  the  Law  of  Part- 
nership ;  with  an  Appendix  of  Forms.  Fifth  American,  from  tlie 
second  English  Edition,  witli  large  additions  to  the  Text  aud 
Notes,  by  Hon.  J.  C.  Perkins.     8vo 6.50 

CRANCH  (William).  — Reports  of  Cases  in  the  United  States 
Circuit  Court  of  the  District  of  Columbia,  from  1801  to  1841.  6 
vols.     8vo. 33.00 

CRUISE  (William).  — A  Digest  of  the  Law  of  Real  Property. 
Second  American  from  the  fourth  London  Edition,  revised  and  en- 
larged, with  Notes  and  Illustrations  from  the  Roman,  Civil,  aud 
Foreign  Law,  and  specially  adapted  to  the  American  Practice,  by 
Simon  Greenleaf,  LL.  D.     3  vols.     8vo. 

CURTIS  (George  T.).  —  Precedents  in  Equity.     Supplementary 

to  Story's  Equity  Pleading.     Third  Edition.     8vo.  .         .         .       6.50 

., Treatise  on   the  Law  of  Patents  lor 

Useful  Inventions  in  the  United  States  of  America,  and  Remedies 
for  their  Intringement.  Third  edition,  with  many  additions. 
2  vols.     8vo.     [In  preparation.) 

CURTIS  (Judge  B.  R.).  — United  States  Circuit  Court  Reports. 

First  Circuit,  1851-56.     2  vols.     8vo 11.00 

. . United  States  Supreme  Court  Decis- 
ions, comprising  the  58  volumes  of  cases  reported  by  Dallas,  Cranch, 
Wheaton,  Peters,  and  Howard.  With  Notes  and  a  Diuest.  22  vols. 
8vo.           .        .  ^    .        .        .   110.00 

Digest  of  the  Decisions  of  Ihe  Su- 
preme Court  of  the  United  States  from  the  Origin  of  the  Court  to 
the  close  of  the  December  term,  1854.     8vo 6.50 

GUSHING  (Luther  S.).  — Reports  of  Cases  Argued  and  De- 
.  termined  in  the  Supreme  Judicial  Court  of  Massachusetts.   12  vols. 
8vo.     Per  vol 5.50 

. An  Introduction  to  the  Study  of  the 

Roman  Law.     12mo.     Cloth.  .         .  1.25 

Law  and  Practice  of  Legislative  As- 
semblies in  the  United  States  of  America.     Second  edition.     8vo.       6.Cy0 

DANIELL  (Edmund  R.).  —  Pleading  and  Practice  of  the  High 
Court  of  Chancery.  Fourth  American  Edition.  To  whicli  are 
added  several  entirely  New  Chapters,  and  Copious  Notes,  adapting 
the  work  to  American  Practice  in  Chancery.  By  Hon.  J.  C.  I'er- 
kins.     3  vols.    8vo.  22.  Jt) 

DAVIS  (Daniel). — A  Practical  Treatise  upon  the  Authority 
and  Duty  of  Justices  of  the  Peace  in  Criminal  Prosecutions.  Third 
edition,  rev'sed  and  greatly  enlarged.   Edited  by  F.  F.  Heard.   &vo.       5.50 


DOMAT  (Jraii^  — The  Civil  Law  in  its  Natural  Order,  to- 
gether with  tlie  riil)lii;  Law.  'J'raiisliited  into  Kiiglisli,  by  Wjlliiim 
StraliJini  ;  with  I^eniarks  on  some  Diflercnccs  between  tlie  Civil 
Law  and  the  Law  of  Kiighind  ;  printed  entire  from  the  hist  London 
Edition.  lOdited  by  tiie  lion.  Lutiier  S.  Cashing.  Fourtii  edition. 
2  vols.     8vo , $1-J.0C 

DRAKE  (Charles  D.).  — Treatit^e  on  the  Law  of  Suits  by  At- 
tachment in  the  United  States.    (Ntw  Edition  in  Press.) 

DUER  (W.  A.).  —  Course  of  Lectures  on  the  Constitutional 
Jurisprudence  of  the  United  States.  Second  edition.  Vlxao. 
Cloth 2.0  > 

EMERIGON  (B.  M.V  —  A  Treatise  on  Insurances.  Translated 
from  the  French,  with  an  Introduction  and  Notes,  by  Samuel 
Meredith,  Esq.     8vo.  6.60 

ENGLISH  REPORTS  {DIGEST).  —  A  Digest  of  the  De- 
cisions of  the  Courts  of  England,  contained  in  the  English  Law  and 
Equity  Reports,  from  the  first  volimie  to  the  thirty-first  inclusive. 
By  Ciiauncey  Smith,  Esq.     Second  edition.     8vo.  .         •         .       5.50 

ENGLISH  RAILWAY  AND  CANAL  OASES,  Argued  and 
Adjudged  in  the  Courts  of  Law  and  Equity,  from  1835  to  1852. 
From  tlie  London  Edition.  Edited  by  Chauncey  Smith  and  Sam- 
uel W.  Bates,  Esqrs.     6  vols.     8vo. 30.00 

GALLISON  (John),  —  Reports  of  Cases  Argued  and  Deter- 
mined in  the  Circuit  Court  of  the  United  States  for  the  First  Cir- 
cuit, from  1812  to  1815.  Second  edition,  with  additional  Notes  and 
References.     2  vols.    8vo 11.00 

GRAY  (Horace,  Jr.).  —  Reports  of  Cases  Argued  and  Detej-- 
mined  in  the  Supreme  Judicial  Court  of  Massachusetts.  Vols.  I.  to 
XII.  —  XIII.  and  XIV.     8vo.    Per  vol 5..')0 

GREENLEAF   (Simon)  —Treatise  on  the  Law  of  Evidence. 

8  vols.     8vo.     Eleventh  edition 22.50 

Maine     Reports.       New     Edition. 


With  Notes  and  References  to  Later  Decisions.    By  E.  H.  Ben- 
nett.    9  vols,  in  8.    8vo. 40.00 

HEMPSTEAD   (Samuel  H.).  —  Circuit    Court   Reports,  Ninth 

District,  Arkansas.     8vo. '      5.50 

BILLIARD  (Francis). —  A  Treatise  on  the  Law  of  Mortgages 
of  Real  and  Personal  Property  ;  being  a  General  View  of  the  Eng- 
lish and  American  Law  upon  that  subject.  Third  edition,  en- 
larged.   2  vols.    8vo 15.00 

A  Treatise  on  Torts,  being  a  Compre- 
hensive Summary  of  the  Law  relative  to  Wrongs  committed  upon 
Real  and  Personal  Property,  upon  the  Person,  Character,  and  all 
absolute  and  relative  Rights  ;  including  Disseisin  of  Lands,  Tres- 
passes to  Real  and  Personal  Estate,  Slander,  Malicious  Prosecution, 
Negligence,  and,  in  general,  all  acts  and  omissions  which  are  made 
the  subject  of  Actions  of  Tort.     2  vols.     8vo.     Second  edition.     .     13.00 

Treatise  on   the   Law   of   Vendors    and 


Purchasers  of  Real  Property.     2  vols,  in  1      8vo.  .        .        .       7.5f 


HOBART  (Sir  Henry).— Reports  of  Cases  Temp.  Eliz.  et 
Jac.  I.  Reviewed  and  corrected  by  Edward  Chilton.  First  Amer- 
ican from  the  Fifth  English  Edition.  With  Notes  by  Hon.  J.  M. 
Williams.    8vo $3.76 

HOWARD  (Benjamin  C). —  Reports  of  Cases  Argued  and  Ad- 
judged in  the  Supreme  Court  of  the  United  States.  Vols.  IV.  to 
XVIII.  inclusive.     8vo.     Per  vol 5.50 

HURD   (J.    C).  —  Law  of   Freedom    and    Bondage.      2  vols. 

8vo 8.00 

J  ARM  AN  (T.).  —  A  Treatise  on  Wills,  with  a  copious  Disserta- 
tion on  the  Construction  of  Devises.  With  Notes  and  References 
to  American  Law,  by  Hon.  J.  C.  Perkins.  Fourth  edition.  2  vols. 
8vo. 

KENT   (James). —  Commentaries  on    American   Law.      Tenth, 

and  entirely  Revised  Edition.    By  Hon.  William  Kent.  4  vols.  8vo.     18.00 
Vol.  I.  sold  separately,  for  the  use  of  Schools  and  Colleges         .       4.00 

LAWRENCE  ON  VISITATION  AND  SEARCH.— An 
Historic  Sketch  of  the  British  Claim  to  exercise  a  ^laritime  Po- 
lice over  Vessels  of  all  Nations  in  Peace  as  well  as  War,  &c.    8vo.       1.00 

MARVIN  (William).  —  A  Treatise  on  the  Law  of  Wreck  and    . 
Salvage.     8vo. 

MASON  (William    P.).— U.    S.    Circuit   Court   Reports,    First 

Circuit.     5  vols.     8vo 27.50 

MASS  A  CHUSETTS  REPORTS.  —  Reports  of  Cases  in  the 

Supreme  Judicial  Court  of  Massachusetts.     87  vols.     8vo.  444.50 

Comprising :  — 

8vo.    . 


Massachusetts 

Reports. 

17  vols 

Pickering's 

24     " 

Metcalf's 

l.S     " 

Cushing's 

12     " 

Grav's 

13     " 

Allen's 

8     " 

.  59.50 

.  1?.2.00 

.  7].r)0 

.  66.01) 

.  71.50 

,  44.00 

MASSACHUSETTS  REPORTS.— Tjng's  Reports  of  Cases 
in  the  Supreme  Judicial  Court  of  Massachusetts,  from  1804  to 
1822.  With  Notes  by  Benjamin  Rand.  Vol.  I.  bv  Ephraim  Wil- 
liams.   17  vols.     8vo.       .........     59..50 

MASSACHUSETTS  DIGEST- V,em<r  a  Digest  of  the  De- 
cisions of  the  Supreme  .Judicial  Court  of  INIassachusetts,  by  E.  H. 
Bennett  and  F.  F.  Heard.     2  vols.     Royal  8vo.       .         .         .  15.00 

METOALF  (Theron).  — Reports  of  Cases  Argued  and  Deter- 
mined in  the  Supreme  Judicial  Court  of  Massachusetts.  1.3  vols. 
8vo 71..50 

PARSONS   (Theophilus).  — The    Law    of    Contracts.       Fifth 

edition,  carefully  revised  and  considerably  enlarged.     3  vols.    8vo.     22.50 

. The  Elements  of  Mercantile  Law. 

Second  edition,  carefully  revised  and  considerably  enlarged.     8vo.       6. -50 

The  Laws  of  Business  for  Business 


Men  in  all  the  States  of  the  Union.     8vo.     Cloth,  $3.00.     Sheep       3.6C 


6 

PARSONS  (Tlu'upliiliis). —  A  Treatise  on  Miiritime  Law,  in- 
cluding tliCToiii  tlie  L;iw  of  iShipijiiig,  tlic  Law  of  Insurance,  and 
the  Law  and  Practice  of  Admiralty.     2  vols.     8vo.         .         .  Sirj.OO 

VHILLIPS  (Willai-d).  —  A  Treatise  on  the  Law  of  Insurance. 

Fourtli  edition.     2  vols.    8vo. 13.00 

PICKERING  (Octavius).  — Reports  of  Cases  in  the  Supreme 
Judicial  Court  of  Massachusetts,  from  1822  to  1840.  24  vols. 
8vo 132.00 

QUINCTS  MASSACHUSETTS  JiEPORTS.  Reports  of 
Cases  Argued  and  Adjudged  in  the  Supreme  Court  of  Judicature, 
in  the  Province  of  Massachusetts,  from  17G2  to  1771.  \^y  Josiali 
Quincy,  Jr.  Printed  from  his  original  nKumscrijits,  in  the  jiosses- 
sion  ol  his  son,  Josiali  Quincy,  and  edited  hy  his  great-grandson, 
ISamuel  M.  Quincy  of  the  Boston  Bar.     8vo G.OO 

RAWLE  (William  Henry). —  A  Practical  Treatise  on  the  Law 

of  Covenants  for  Title.     Third  edition.     8vo.  ....       G.50 

RAT  (Isaac).  —  The  Medical  Jurisprudence  of  Insanity.    Fourth 

edition,  much  enlarged.     8vo. 4.50 

REDFIELD  (Isaac  F.).  — A  Practical  Treatise  on  the  Law  of 

Ivailways.     Second  edition,  enlarged.    8vo 6.50 

REDFIELD  ON  THE  LAW    OF    WILLS ;    with    Forms, 

&c.     8vo.     ■ .        7.50 

RHODE  ISLAND  REPORTS.— Ucports  of  Cases  Argued 
and  Determined  in  the  Supreme  Court  of  Khode  Island.  By  Hon. 
Samuel  Ames,  Chief  Justice  and  Reporter.  Vols.  I.,  II.,  and  III., 
being  Vols.  IV.,  V.,  and  VI.  of  lihode  Island  Reports.  8vo.  Per 
vol 5.00 

ROBB  (James  B.). —  A  Collection  of  the  United  States  Patent 
Cases  decided  in  the  Supreme  and  Circuit  Courts  of  the  United 
States,  from  their  Organization  to  the  year  1850.  With  Kotes, 
Index,  etc.     2  vols.     8vo 13.00 

SMITH  (W.  L.).  —  Probate  Law  and  Practice  Designed  for  the 
use  of  Executors  and  others  having  business  in  the  Probate  Court. 
12mo.     Cloth,  1.60.     Sheep 1.75 

STORY  (Joseph). —  Commentaries  on  the  Law  of  Agency,  as  a 
Branch  of  Commercial  and  Maritime  Jurisprudence,  with  Occa- 
sional Illustrations  from  the  Civil  and  Foreign  Law.  Sixth  edition. 
8vo 6  50 

Commentaries  on  the   Law  of  Bailments, 

with  Illustrations  from  the  Civil  and  Foreign  Law.  Seventh  edi- 
tion.    8vo.        .        .        .        • 6.50 

Commentaries  on  the  Law  of  Bills  of  Ex- 
change, Foreign  and  Inland,  as  administered  in  England  and 
America.     Fourth  edition.    8vo 6.5(' 

Commentaries    on    the   Conflict  of  Laws, 

Foreign  aud  Domestic,  in  regard  to  Contracts,  Rights,  and  Reme- 
dies, and  espceially  in  regard  to  Marriages  Divorces,  Wills,  Suc- 
cessions, and  Judgments.    Sixth  edition.    8vo.         ■         .  •       7.50 


STORY   (Joseph). —  Commentaries    on  the  Constitution   of  the 

United  States  ;  with  a  Preliminary  Review  of  tlie  Constitutional 
History  of  tlie  Colonies  and  States,  before  the  Adoption  of  the 
Constitution.     Third  edition,  revised.     2  vols.     8vo.      .         .         .    iJS.OO 

Commentaries    on    Equity  Jurisprudence, 

as  administered  in  England  and  America  Eighth  edition,  care- 
fully revised  with  extensive  additions.  Edited  by  Hon.  I.  F.  Red- 
field.    2  vols.     8vo 13  00 

.  Commentaries    on    Equity   Pleadings   and 

the  Incidents  thereto,  according  to  the  Practice  of  the  Courts  of 
Equity  of  England  and  America.    Seventh  edition.     8vo.      .        .       T.-'SO 

Commentaries  on  the  Law  of  Partnership 

as  a  Branch  of  Commercial  and  Maritime  Jurisprudence,  with 
Occasional  Illustrations  from  the  Civil  and  Foreign  Law.  Fifth 
edition,  revised  and  enlarged,  by  E.  H.  Bennett,  Esq.     8vo.  .        .      6.50 

Commentaries  on  the  Law  of  Promissory 

Notes,  and  Guaranties  of  Notes  and  Checks  on  Banks  and  Bank- 
ers, with  Occasional  Illustrations  trom  the  Commercial  Law  of  the 
Nations  of  Continental  Europe.  Fifth  edition,  revised  and  en- 
larged, by  E.  H.  Bennett,  Esq.    8vo 6.50 

STORY  (William  ^Y.).  —  A  Treatise  on  the  Law  of  Contracts.     . 

Fourth  edition,  revised  and  enlarged.    2  vols.     8vo.        .        .        .     13  00 

. . A   Treatise    on   the   Law  of  Sales  of 

Personal  Property,  with  Illustrations  from  the  Foreign  Law. 
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SUMNER  (Charles).  —  Reports  of  Cases  Argued  and  Deter- 
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TAYLOR  (John  N.).  — A  Treatise  on  the  American  Law  of 
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THE   LAW 


OF 


YENDORS  AND  PURCHASERS 


OF   EEAL   PROPERTY. 


FRANCIS    BILLIARD, 

AUTHOR  OF  THE  LAW  OF  M0KT6AGES,  ETC. 


IN   TWO    VOLUMES. 

VOL.  L 


BOSTON: 
LITTLE,  BROWN    AND    COMPANY. 


M  DCCC  LVIH. 


T 


Entered  according  to  Act  of  Congress,  in  the  year  1858, 

By  Francis  Hilliard, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


RIVERSIDE,    CAMBRIDGE: 
PRINTED   BY   H.  O.  HOUGHTON   AND   COMPANT. 


PREFACE. 


Many  years  ago,  I  conceived  the  design  of  preparing 
an  extended  view  of  The  American  Law  of  Real  Property, 
and  accordingly  compiled  the  Treatise  or  Abridgment, 
the  last  edition  of  which  bears  that  title.  That  work 
was  modelled  substantially  upon  the  approved  Digest  of 
Mr.  Cruise,  which  had  long  been  used  as  the  popular 
text-book  upon  this  subject.  In  the  preface  I  took  occa- 
sion to  remark,  that,  in  consequence  of  the  disuse  of 
many  feudal  doctrines,  which  our  ancestors  left  behind 
them  in  emigrating  to  this  country;  the  gradual  adap- 
tation of  our  law  to  the  republican  institutions  here 
established ;  and,  above  all,  the  numerous  and  various 
statutory  enactments  in  the  different  States  of  the 
Union; — the  English  Law  of  Real  Property  and  the 
American  Law  of  Real  Property  had  come  to  be  two 
distinct  systems,  requiring,  of  course,  to  be  stated  and 
explained  in  distinct  elementary  works. 


iv  PREFACE. 

While  the  valuable  Digest  of  Mr.  Cruise  had  been 
the  approved  manual  of  the  American  lawyer,  upon  those 
branches  of  the  general  law  of  Real  Property,  which 
alone  he  assumed  to  treat;  another  portion  of  this  ex- 
tensive subject  was  then,  and  has  been  ever  since,  occu- 
pied by  another  work  of  equal  merit  and  popularity, 
to  wit,  Siigden  on  Vendors  and  PurcJmsers.  The  line  of 
division  between  these  two  works  is  very  marked  and 
apparent.  The  former  treats  of  the  title  to  Real  Prop- 
erty ;  the  modes  of  acquiring  such  title,  and  the,  inci- 
dents, rights,  and  liabilities  which  appertain  to  it,  after 
it  is  acquired ;  while  the  latter  is  restricted  in  plan, 
though  not  always  in  execution,  to  executory/  contracts 
of  sale  and  purchase,  by  which,  when  carried  out, 
the  title  will  of  course  be  changed,  but  which  in 
themselves  effect  no  such  change.  English  law  and 
American  law  ^.re  less  divergent  upon  the  latter  than 
upon  the  former  class  of  subjects  ;  and  indeed  their 
discrepancy  in  reference  to  mere  executory  contracts 
concerning  real  property  results  chiefly  from  the  differ- 
ent rules  which  prevail  as  to  real  property  itself.  Thus 
estates  tail  have  been  substantially  abolished  in  the 
United  States  ;  and,  although  there  is  no  legislation 
immediately  relating  to  contracts  of  sale  and  purchase, 
which  by  way  of  title  to  the  property  sold  involve  the 
nice  points  of  entailment ;  still  the  one  change  neces- 
sarily involves  the  other,  and  upon  both  subjects  alike 
virtually  supersedes  those  intricate  and  subtle  distinc- 


PREFACE. 


tions,  which  have  given  occasion  to  so  many  decisions 
in  the  English  Courts.  The  same  may  be  said  of  the 
obsolete  titles  of  Fine  and  Recovery,  Tithes,  Advoivson, 
Copyhold,  &c. ;  and  to  some  extent  of  those  other  numer- 
ous subjects — such  as  Dower,  Descent,  Devise,  Execution, 
&c., — which  have  not  themselves  become  obsolete  in  our 
law,  but  the  rules  and  principles  of  which  have  been  so 
extensively  and  vitally  modified  by  American  statute 
and  usage. 

There  are  moreover  many  points  of  mere  i^ractice,  in 
suits  relating  to  the  title  of  real  property  sold,  more 
especially  suits  in  Equity ;  which  are  peculiar  to  the 
English  Courts,  and  may  well  be  very  cursorily  noticed 
in  an  American  treatise. 

Upon  the  whole,  therefore,  I  may  state,  that  the 
present  work  is  designed  to  occupy  the  same  ground 
in  American  law,  which  has  been  so  successfully  occu- 
pied in  the  English  law  by  Sugden  on  Vendors  and 
Purchasers.  I  mean  the  same  ground  for  mere  practical 
use  ;  for,  as  I  shall  presently  explain,  this  is  the  pre- 
vailing purpose  of  the  book;  and  I  do  not  profess  to 
have  imitated  the  free  discussion,  independent  criticism, 
acute  comparison  of  authorities,  and  flowing  style  of 
expression,  which  have  made  that  work  so  popular  and 
so  worthy  of  the  fame  of  its  distinguished  author. 
Without,  for  the  most  part,  undertaking  to  weigh  and 
balance  conflicting  decisions,  or  to  pursue  the  fine 
threads  of  distinction  which  run  through  opposing  cases 


VI  PREFACE. 

and  opinions;  I  have  endeavored  to  present  in  a  com- 
pact form  the  Icuv  as  it  is,  in  the  shape  of  the  English 
and  American  authorities ;  usually  accompanied,  where 
there  is  a  serious  conflict  in  the  cases,  with  a  general 
expression  of  opinion  as  to  the  prevailing  rule  upon  the 
particular  topic  of  discussion.  It  has  always  seemed  to 
me  peculiarly  impracticable,  in  an  American  text-book, 
for  the  writer  to  advance  any  proposition  of  his  own,  as 
in  the  nature  of  the  "  respoiisa  prudentum  "  of  the  Roman 
law ;  or  in  other  words  as  the  law,  authoritatively  elim- 
inated from  the  opposing  cases ;  because,  in  each  of  the 
United  States  of  America,  the  decisions  of  its  own  Court 
are  the  controlling  rule ;  and  if,  in  a  treatise  designed  for 
national  use,  the  author  should  deduce  an  oracular  con- 
clusion from  the  concurring  cases  in  a  majority  of  the 
States  on  one  side,  that  conclusion  would  not  be  law  in 
the  minority  of  States,  whose  Courts  agree  on  the  other 
side.  While,  therefore,  the  highest  respect  is  due  to 
the  private  opinion  of  such  a  writer  as  Sir  Edward  Sug- 
den  and  many  of  our  American  commentators,  upon  any 
controverted  point;  it  is  after  all  but  an  opinion,  the 
value  of  which  in  any  particular  locality  is  best  tested 
by  a  summary  statement  of  the  decided  cases  upon 
which  it  rests. 

Although  the  subjects  treated  are  substantially  the 
same  as  those  in  Sugden,  the  plan  and  arrangement  are 
wholly  different,  and,  as  I  venture  to  suggest,  more  in- 
telligible and  appropriate.     I  begin  with  the  distinction 


PKEFACE.  VU 

between  executed  and  executory  contracts ;  and  proceed 
to  explain  what  is  necessary  to  constitute  a  contract, 
its  consideration,  parties,  construction,  and  form — in- 
cluding sales  by  auction,  the  Statute  of  Frauds,  license, 
and  part-performance.  Then  follow  the  Time  of  perform- 
ance, the  Title  to  the  property  sold,  and,  in  natural  suc- 
cession, partial  failure  of  title,  and  the  general  grounds 
for  avoiding  or  rescinding  a  sale,  in  whole  or  in  part, 
whether  for  total  or  partial  want  of  title,  for  non-pay- 
ment of  the  price,  or  other  causes;  including  Mistake, 
Fraud,  the  sale  of  Expectancies,  breach  of  Trust,  and 
Notice.  Having  completed  my  view  of  the  rights  and 
liabilities  growing  out  of  the  contract,  I  proceed  to  the 
subject  of  the  Remedies  for  enforcing  it ;  firs4  in  Equity, 
including  the  extensive  subject  of  Specific  Performance, 
and  then  promiscuously  in  Law  and  Equity,  including,  in 
more  minute  detail  than  before,  the  title  which  the  ven-' 
dor  must  show,  and  the  grounds  of  objection  which  may 
be  made  against  it ;  the  dependence  or  independence  of 
the  mutual  covenants  of  the  parties ;  actions  to  recover 
back  the  price  paid,  and  defences  against  notes  and 
other  securities  given  therefor ;  the  claim  for  Use  and 
Occupation,  Damages,  Pleading,  Parties,  and  miscella- 
neous points  of  practice.  I  close  with  an  Appendix, 
somewhat  similar  to  that  found  in  Sugden,  containing 
some  of  the  most  recent  decisions  upon  the  prominent 
topics  of  the  work,  stated  very  much  more  in  detail 
than  is  done  in  the  work  itself,  and  generally  contain- 


VUl  PREFACE. 

ing  a  useful  abstract  of  the  earlier  cases  upon  the  same 
subjects. 

Expressing  my  thanks  to  the  profession  for  their 
favorable  reception  of  my  previous  works  upon  the  Law 
of  Real  Property  and  upon  Mortgages,  I  submit  the 
present  work  to  their  candor  and  Idndness. 

FRANCIS   HILLIARD. 

Boston,  February,  1858. 


CONTENTS. 


CHAPTER  I. 

Page 

Nature  of  the  Contract  for  a  Sale  and  Purchase 

OF  Lands 1-13 

1.  Distinction  between  the  executory  contract,  and  a  transfer  in  pursuance  of 
it ;  merger,  &c. 

7.  Right  of  property  and  possession,  at  law. 
13.  Doctrine  in  equity ;  whether  a  title  passes. 

15.  Whether  the  purchaser  has  a  descendible  and  devisable  interest;  application 
of  funds  ;  revocation  and  republication  of  will,  &c.  Devise  by  a  vendor,  and  the 
effect  thereof. 

40.  Reforming  a  deed,  for  variance  from  the  previous  contract. 

CHAPTER  n. 

What  constitutes  an  Agreement  for  the  Sale 
AND  Purchase  of  Lands. — Distinction  between 
A  Contract  and  a  mere  Proposal,  Offer,  etc.         14-18 

1.  An  offer  does  not  bind,  till  accepted. 

2.  Contract  by  correspondence. 

8.  Contract  by  several  connected  papers. 

CHAPTER  UL 

Consideration  of  a  Contract  of  Sale. — Price     .        19-40 

1.  Neeessity  of  a  consideration. 

3.  Inadequacy  of  consideration. 

4.  Illegality  of  consideration. 

5.  Nature  of  consideration. 

6.  Need  not  be  expressed. 

11.  Price;  construction  of  the  agreement  for. 
18.  Sufficiency  of  security  for. 


X  CONTENTS. 

19.  Mutual  rights  and  duties  of  the  parties  in  connection  with  the  price.    Offer 
to  perform,  tender  of  deed,  &c. 
47.  To  whom  the  price  shall  be  paid;  parties  jointly  interested. 


CHAPTER  IV. 

Interest 41-51 

1.  Claim  of  a  vendor  for  interest. 
13.  Rale  of  interest. 

15.  Interest  in  case  of  reversions. 

17.  Investment  of  the  purchase-money. 
20.  Claim  of  a  vendee  for  interest. 
28.  Interest  on  money  paid  into  Court. 

CHAPTER  V. 
Parties  to  Contracts 52-71 

1.  Necessity  of  parties  ;  uncertainty,  t&.c. 

6.  Joint  parties. 

12.  Husband  and  wife. 

16.  Representatives  of  a  party  deceased. 

32.  Trustees  and  cestuis  que  trust. 

36.  Agents  ;  their  authority  ;  it  may  be  verbal;  construction  of  written  powers, 
&c. 
47.  Form  of  the  contract;  whether  it  binds  the  agent  or  the  principal. 
58.  'Trust  arising  from  an  agency. 

CHAPTER  VI. 
Sales  by  Auction      .        • 72-100 

1.  Forms  of  sale. 

2.  What  is  an  auction  ;  effect  of  a  bid ;  separate  estates ;  Idling  by  auction. 
12.   Puffing. 

24.  Combination  of  purchasers,  to  reduce  the  price. 

33.  Rights  and  duties  of  an  auctioneer. 
42.  Statute  of  Frauds. 

50.  Parol  evidence. 
53.  Deposit. 

CHAPTER  VII. 
Statute  op  Frauds ^01-124 

1.  Form  of  contracts  for  the  sale  and  purchase  of  lands.     Statute  of  Frauds. 

2.  What  property  is  within  the  statute  ;  products  of  the  soil ;  growing  wood, 
&c. 

7.  Other  property  connected  with  the  realty. 
ID.  Property  not  within  the  statute  ;  products  of  the  soil,  &c. 


CONTENTS.  XI 

14.  Paper  securities  relating  to  land. 

15.  Agreement  as  to  boundary. 

16.  Whether  the  statute  applies  to  a  claim  for  the  price. 

23.  Construction  of  the  statute  as  to  the  form  of  executing  a  written  memo- 
randum ;  what  is  a  signing ;  reference  of  different  papers  to  each  other,  &c. 
40.  Form  of  pleading  or  relying  upon  the  statute. 


CHAPTER  VIII. 
Parol  License 125-141 

1.  Part-performance  and  license. 

2.  Nature  of  a  license. 

8,  Implied  license. 

9.  Distinction  between  a  license,  and  a  lease,  or  an  easement. 

19.  A  license  creates  a  personal  right;  by  whom,  and  at  what  time,  it  is  to  be 
executed  ;  who  are  bound  by  it. 

27.  Whether  and  how  far  a  license  is  revocable. 

CHAPTER  IX. 
Part-performance 142-163 

1.  License  and  part-performance. 

2.  Part-performance,  at  law. 

5.  Entire  performance,  in  Equity. 

6.  Part-performance  in  Equity. 

7.  Who  may  avail  liimself  of  part-performance. 
8-20.  What  acts  are  sufficient. 

10.  Proof  of  the  terms  of  a  parol  agreement. 

11.  Decided  cases. 

\^^.  V&roX  partition.  • 

17.  The  effect  of  part-performance  is  founded  on  fraud. 

18.  Effect  of  payment. 

24.  Doctrine  in  the  United  States. 

25,  Compensation  for  expenditures,  &c. 

CHAPTER    X. 
Construction  of  Contracts 164-179 

1 .  General  rules. 

6.  Certainty. 
13.  Separate  instruments. 
18.  Parol  evidence. 

CHAPTER  XI. 
Time  of  Performing  Contracts       ....     180-207 

1.  Time,  when  of  the  essence  of  the  contract. 
9.  When  not  of  the  essence  of  the  contract. 


Xll  CONTENTS. 

14.  Title  at  the  time  of  hearing,  t^c,  when  suflicicnt. 

21.  Waiver,  &c.,  as  to  time. 

3,').  Necessity  smd  otVect  of  notice  in  reference  to  time. 

41.  Time,  in  connection  witii  delivery  of  abstracts. 

47.  Deterioration  from  lapse  of  time. 

50.  Construction  of  contracts  as  to  time. 


CHAPTER   XII. 
TiThK  OP  THE  Vendou 208-230 

1.  General  importance  of  the  subject. 

2.  In  general  the  vendor  is  bound  to  convey  a  good  title. 
15.  Destruction  of  the  property  sold,  after  the  sale. 

18.  Grounds  of  objection  to  the.  title. 

21.  Mutual  rights  and  obligations  of  the  parties,  as  to  conveyance  of  the  land 
and  payment  of  the  price. 
28.  Question  of  time,  in  reference  to  the  title. 
36.    Waiver  of  title. 

CHAPTER  XIII. 

Title  to  the   Property  Sold. — Partial   Failure 

OF  Title 231-247 

1.  Partial  defect  of  title,  what  constitutes. 

2.  When  it  is  no  ground  of  objection  by  the  vendee. 
10.  Compensation  for  partial  failure  of  title. 

14.  When  ground  for  rescinding  the  sale. 

26.  Whether  the  vendor  may  object  on  the  ground  of  deficiency  or  excess  in  the 
properly. 

CHAPTER  XIV. 
Reference  of  Title 248-254 

1.  Questions  of  title,  when,  and  how  referred.    Forms  of  proceeding. 

CHAPTER  XV. 
Title    Deeds 255-261 

CHAPTER  XVI. 
Title  to  Leaseholds 262-287 

1.  Agreement  for  a  lease. 

5.  Whether  an  agreement  for  a  lease  or  purchase  in  fee. 


CONTENTS.  XUl 

10.  What  is  necessary  to  constitute  a  sale  of  leasehold  ;  offer  and  acceptance. 

1 1 .  Uncertainty  in  the  agreement. 

12.  The  vendor  must  make  a  good  title. 

22.  Otherwise  in  case  of  express  agreement  to  the  contrary. 

24.  Waiver  of  title. 

27.  Covenants,  in  case  of  leasehold  sales. 

31.  PcHi-failure  of  title;  compensation,  rescinding,  &c. 

46.  Effect  of  notice  upon  the  title. 

48.  Parol  evidence. 

51.  Statute  of  Frauds. 


CHAPTER  XVir. 

Rescinding  of  Sales 288-302 

1.  General  subject ;  grounds  for  abandoning  a  contract. 
10.  Misdescription  of  the  property. 
13.    Compensation. 

17.  Presumption  of  rescission. 

18.  Waiver. 

20.  Mode  of  rescinding  ;  by  vendor  or  vendee ;  form  of  action. 

28.  Interest,  improvements,  &c. 

CHAPTER  XVIII. 

Grounds  for  Avoiding  a  Sale. — Mistake       .        .     303-323 

1.  General  remarks. 

3.  Mistake,  what. 

4.  Ignorance  or  mistake  of  law  and  fact. 

8.  Equitable  relief  in  case  of  mistake :  mode  and  extent  of 
10.   Compensation  or  rescinding  in  case  of  mistake ;  guantiti/  of  land  sold  and 
conveyed  ;  sale  in  gross,  or  by  boundaries  ;  more  or  (ess,  &c. 

16.  Title  to  part  of  the  property  sold;  when  sufficient. 

17.  Compensation. 

22.  Rescission  of  the  sale. 

25.  Rights  of  the  vendor  in  case  of  mistake. 
30.    Waiver. 

33.  Reforming  of  agreements. 
40.  Parol  evidence. 

CHAPTER  XIX. 
Grounds  of  Avoiding  a  Sale. — Fraud  .        .        .     324-348 

1.  Misrepresentation  avoids  a  sale. 

3.  Whether  made  ignorantly  or  intentionally;  express  or  implied. 
10.  Under  what  circumstances  the  vendee  is  bound  by  a  fraudulent   sale  ; 
waiver;  mode  of  rescinding;  acceptance  of  deed;  lapse  of  time,  &c. 
17.  Part-performance  and  compensation. 

23.  Parties ;  principal  and  agent,  &c. 

29.  Fraud  of  the  vendee. 

34.  Evidence,  damages,  &c. 

YOL.  I.  b 


xiv  CONTENTS. 


CHAPTER   XX. 


Implied  or  Constructive  Fraud. — Incapacity,  In- 
adequacy OP  Consideration,  etc.         .        .        .     349-360 


1.  Constructive  fraud. 

2.  Mental  inability. 
6.  Drunkenness. 

10.  lnaclc(iiiacy  of  consideration. 
16.  Excess  of  consideration. 


CHAPTER    XXI. 

Sale  of  Expectancies 361-368 

CHAPTER   XXII. 
Constructive  Fraud. — Trust,  etc 369-397 

1.  General  principle  of  confidential  relations. 

6.  Agents. 

10.  Trustees. 

16.  Attorneys,  solicitors,  &c.  • 

24.  Executors,  guardians,  &c. 

26.  Miscellaneous  trusts ;  and  exceptions  and  limitations  to  the  general  rule. 

37.  Remedies. 

CHAPTER   XXIII. 
Notice 398-415 

1.  General  principles  as  to  notice. 

4.  Express  and  implied  notice. 

5.  Notice  sullHcient  to  demand  inquiry. 

6.  Implied  notice,  chiefly  as  arising  from  possession  under  an  unrecorded 
deed. 

10.  Notice,  to  whom  given  ;  agents,  solicitors,  &c. 

13.  By  whom. 

14.  Notice,  in  cases  of  lease  and  tenancy. 
22.  Lis  pendens. 

CHAPTER   XXIV. 

Remedies  of  Vendors  and  Purchasers. — Law  and 
Equity. — General  Jurisdiction  of  Courts  of 
Equity;  Compensation;  Rescinding;  Lien,  etc.      416-427 


CONTENTS.  XV 

CHAPTER   XXV. 

Specific  Performance 428-455 

I.  Nature  and  history  of  the  remedy. 

3.  Its  peculiar  application  to  contraots  relating  to  real  estate. 

4.  Questions  of  jurisdiction,  in  rem  and  in  personam. 

5.  Form  of  the  contract ;  bond  with  penalty. 

7.  Sjjccific  performance,  in  connection  with  other  modes  of  relief. 

12.  Denial  of  specific  performauce,  and  rescinding  of  the  sale,  compared. 

13.  Compensation — damages.  , 

14.  Contract  must  be  certain. 
IB.  And  mutual. 

20.  And  reasonable  and  equitable — fraud,  mistake,  &c. 

27.  But  not  necessarily  beneficial. 

28.  Public  policy. 

30.  Consideration,  inadequate  or  excessive. 

34.  Price  fixed  by  arbitration. 

39.  Plaintiff  must  prove  ])crformance  of  his  own  contract. 

44.  Partial  failure  of  title. 

45.  Statute  of  Frauds — part-performance.    Defences;  pleading;  evidence,  &c. 


INDEX  TO  CASES  CITED. 


Page 

Page 

A. 

Anson  v.  Hodges 
Anthony  ik  Leftwich 

48 
162 

Acland  v.  Gaisford 

44 

Archer  v-  Preston 

430 

Adams  v.  Freeman 

127 

Argenbright  v.  Campbell 

1 

V.  M'Millan  26,  60, 

114, 

117, 

Arnold  v.  Brown 

386 

120 

Arnott  V.  Biscoe 

348 

V.  Smith 

28 

Ascutiiey,  &c.  v.  Ormsby 

93 

V.  Townsend 

144 

Ashcom  V.  Smith                   ^ 

318 

V.  Wears 

438 

Ashley  v.  Baillie 

408 

Adderley  v.  Dixon 

429 

Ex  parte 

396 

Addison  v.  Dawson 

351 

Ashmun  v.  Williarc^ 

141 

^tna,  &c.  V.  Tyler 

427 

Athol  V.  Derby 

430 

Agar  V.  Macklew 

24 

Attorney-General  v.  Backhouse 

271 

Albea  v.  Griffin 

163 

V.  Christ  Church 

Albert  v.  Ross 

104 

42 

Alderman  v.  Neate 

263 

V.  Foster 

164 

Alexander  v.  Beresford 

335 

V.  Gower 

407 

V.  Crosbie 

12 

260 

V.  Sitwell 

12 

V.  Utley 

426 

V.  Taylor 

75 

Allen's  estate 

161 

Atwood  V.  Cobb 

2 

Allen  V.  Booker 

154 

Attwood  V.  Small 

341 

V.  Bower 

149 

I'.  Taylor 

45 

V.  Bryant 

389 

Austin  V.  Chambers 

393 

V.  Cameron 

165 

V.  Sawyer 

105 

V.  Chambers         123, 

161 

1£3 

Ayres  v.  Hayes 

25 

V.  Greene                 60,  62 

186 

V.  Pease 

23 

V.  Hammond 

315 

Aylett  V.  Ashton 

59 

Alley  I'.  Deschamps 

180 

241 

Aylesford's  case 

145 

Alsop  V.  Patten 

155 

Ameriscoggin  &c.  v.  Bragg 

126 

140 

Anderson  v.  Bacon 

386 

B. 

V.  Chick           89, 

145 

157 

V.  Foulke 

240 

Baboock  v.  Smith 

321 

V.  Harold 

117 

Bachelder  v.  Wakefield 

139 

V.  Lemon 

395 

Bacon  v.  Simpson 

199 

Andrew  v.  Atfdrew 

253 

Bage,  Ex  parte 

396 

Andrews  v.  Hobson 

390 

Bailey  v.  Collett 

45 

Annan  v.  Merritt 

145 

Baker  v.  Boston 

128 

Anonymous 

411 

,413 

V.  Carson 

163 

XVIU 


INDEX   TO   CASES   CITED. 


Pafic 

Baker  v.  Carter  3t»7 

Ball  V.  Carew  390,  395,  399 

Baldwin  v.  Belcher  9 

V.  Camplield  438 

f.  Salter  177,194,199 

Ballard  V.  Way  '279 

V.  Walker  298 

Balmanno  v.  Lumlcy  252 

Bamford  v.  Sluittleworth  69 

Bank  Sic.  v.  Torrey  394 

Bander  v.  Snyder  153 

Barclay  v.  Kainc  255 

Barickinan  v.  Kuykcndall      62,  115, 

143,  154, 299 

Barnwell  v.  Harris  2'58,  268 

Barnardiston  v.  Lingood  365 

Barney  v.  Loper  186 

Barnwall  v.  Harris  258,  268 

Barrandos  v.  Archer  234 

Barraque  v.  Siter  2 

Barrett  v.  Buxton  352,  364 

Barstow  v.  Gray  117 

Bartlett  v.  Blanton  255 

V.  Pickersgill  172 

V.  Purnell  88 

Bassler  u.  Mesly  34,160 

Bates  V.  Delavan  444 

Baugh  V.  Price  324 

Bawtree  v.  Wat^n  364 

Baxter  v.  Brand  41,  454 

V.  Brown  263 

V.  ConoUy  266,  281 

V.  Costin  387 

Beaman  v.  Buck  160,  432 

Beard  v.  Hubble  308,  323 

BeatnifF  v.  Smith  400 

Beaumont  ?;.  Bramlcy  11 

V.  Dukes  325 

Beavan  v.  M'Dounell  351 

Beckwith  v.  Kouns  443 

Bedford  v.  Abecorn  165 

Beeson  v.  Beesoa  384,  388,  389 

Beete  v.  Bidgood  50 

Beirne  v.  Erskine  314 

Belchier  v.  Reynolds  441 

Belknap  v.  Sealey  334 

Bell  V.  Andrews  142 

V.  Howard  368 

V.  Twiliii'lit  406 

Bellinger  v.  Kitts  35 

Bellows  V.  Stone  321,  322,  323 

Belworth  v.  Hassell  232 

Beman  v.  Green  168 

Benedict  v.  Beebee  114 

V.  Lynch  180,  188,  435 

Bennett  v.  Carey  193,  221,  252 


Page 

Bennett  v.  Fowler 

250 

V.  Rees 

249 

V.  Smith 

67,439 

V.  Tankerville 

7 

V.  Womack 

274 

Benson  v.  (ilastonbury. 

&c. 

452 

Bernal  v.  Donegal 

364 

Berny  o.  Pitt 

364 

Berry  v.  Vanwinkle 

420 

V.  Walker 

432 

Besaiit  V.  Richards 

276 

Best  0.  Stow          326,  342, 

436,437, 

441 

Beverly  u.  Lawson  317 

Beverley's  case  350,  352 

Bexwell  v.  Christie  77 

Bibb  V.  Poather  325 

Bierne  v.  Erskine  314 

Billington  v.  Welch  158,  404 

Binks  V.  Rokeby  43,  238 

Birce  v.  Bletchley  17 

Birch  V.  Haynes  251 

Bird  V.  Boulter  91 

Biscoe  V.  Brett  252 

V.  Wilks  455 

Blachford  v.  Christian  357 

Blackburn  v.  Stace  448 

Blacklow  V.  Law  228 

Blackwilder  v.  Loveless  433,  436 

Blades  v.  Blades  400 

Blagden  v.  Bradbear  88,  90 

Blake  v.  Phinu  243 

Blakeslee  v.  Blakeslee  161 

Blakeney  v.  Bagott  380 

V.  Ferguson  148 

Blanchard  v.  Moore  342 

Bleakley  v.  Smith  117 

Blennerhasset  v.  M'Namara  44 

Blore  V.  Sutton  285 

Blundell  v.  Brettargh  24 

Blyth  V.  Elmherst  249 

Bgdine  v.  Glading  435 
Boehm  v.  Wood             190,  204,  249 

Bonner  v.  Johnston  452 

Boothby  v.  Walker  448 

Boston,  &c.  V.  Bartlett  15 

V.  Babcock  167 

Bostwick  V.  Lewis  333 

i).  Leach         104,110,112 

Boucher  v.  Vanbuskirk  435 

Boughton  V.  Jewell  256 

Boults  V.  Mitchell  181 

Boulds  V.  Atkinson     •  347 

Bower  v.  Cooper  165 

Bowers  v.  Cator  286 

Bowen  v.  Morris  69 


INDEX  TO   CASES   CITED. 


XIX 


Page 

Bowles  V.  Round  78 

V.  Woodson  118 

Bowyer  v.  Bright  242 
Box  V.  Stanford              124,  160,  342 

Boyer  v.  Blackwell  243 

Boyes  v.  Liddell  249 

Boynton  v.  Hubbard  363 

Boys  V.  Ay  erst  123 

Brackett  v.  Evans  114 

Bradbyn  v.  Ord  400 
Bradshaw  v.  Bennet          47,  99,  100 

V.  Bradshaw  448 

Bradh^y  V.  Bosley  420,423 

Bramley  v.  Alt  79 

V.  Teal  448 

Branch  t'.  Doane  131 

Brashier  v.  Gratz  180 

Breadalbane  v.  Chandos  12 

Bruwer  v.  Bessinger  21 

Bridger  v.  Rice  308 

Bridges  v.  Purcell  108 

V.  Robinson  46 

Brock  V.  Cook  145 
Brockenbrough  v.  Blythe          41,  43 

Broderick  v.  Broderick  345 

Brodie  v.  St.  Paul  142 

Bronson  v.  Cahill  19 

Brook  V.  Jones  88 

Brooke  v. 250 

Broome  i\  Monck  5,  6,  9 

Brooks  u.  Wheelock  159,177 

Brothers  v.  Brothers  393 

Brown  K.  Bellows  116,118 

V.  Budd  406 

;;.  Half  417 

V.  S  tad  ton  95 

V.  Witter  426 

Browning  v.  Clyraer  26 

Bruch  I'.  Lantz  390 

Bryan  v.  Duncan  387 

V.  Reed  216 

Bryant  v.  Busk  257 

Bubier  v.  Bubier  160 

Buchanan  v.  Lorman  41 

Buck  V.  Lodge  448 

V.  M'Caughtry  296 

Buckley  v.  Beardsley  103 

Buckmaster  v.  Harrop      89,  94,  147, 

154    155 

Bulkley  v.  Wilford  '  381 

Bull  V.  Willard  2,  29 

BuUett  V.  Worthington  2 

Bullin  V.  Fletcher  8 

Bullock  V.  Beemiss  302 

Burgess  V.  Wheate  427 

Burgett  V.  Bissell  104 


Burkett  v.  Randall 
Burnell  v.  Brown 
Burns  v.  Allen 

V.  Taylor 
Burrough  v.  Taylor 

V.  Skinner 
Burroughs  v.  Browne 
V.  Oakley 
Burrowes  v.  Locke 
Burton  v.  Todd 
Bushell  V.  Bushell 
Butcher  v.  Butcher 
V.  Stapley 
Butler  V.  Buckingham 
V.  Haskell 
V.  O'Hear 
V.  Hicks 
V.  Stevens 
Buttemer  v.  Hayes 
Buttrick  v.  Holden 
Byrd  v.  Odem 
Byrne  v.  Romaine 


Page 

147 

44,  224,  299 

15,  299 

21 

^*      96 

46 

448 

20,  326 

47 
399 
154 
400 

57 
364 
443 
394 
405 
283 

34 
151 
156 


Caballero  v.  Slater  22 

Cadman  v.  Horner  324,  437 

Cain  V.  M'Guire  110 

Calcraft  o.  Roebuck         44,  238,  292 
Calef?;.  Foster  66 

Calhoun  v.  Jester  133 

Caller  I'.  Hilty  126 

Calloway  v.  Witherspoon  352 

Calverley  v.  Williams  12,  325 

Cameron  v.  Ward  153 

Campbell  v.  Pennsylvania,  &c.      390 


V.  Walker 
Camfield  v.  Gilbert 
Canham  ik  Barry 
Cann  v.  Cann 
Cannon  v.  Mitchell 
Capel  V.  Girdler 
Carleton  v.  Lcighton 
Carlisle  v.  Fleming 
Carpenter  v.  Blaudford 
V.  Lockhart 
Carr  v.  Hilton 

V.  Holliday 

V.  Roach 
Carrington  v.  Roots 
Carson  v.  Lucore 
Carter  v.  Ely 

V.  Toussaint 
Cartwright  v.  Gardner 
Casborne  v.  Barsham 


94, 


148, 


365, 388 
290 
340 
228 
236 
5 
365 
157 
203 
116 
401 
351 
3 
105 

35 
181 
102 

24 
378 


XX 


INDEX   TO   CASES   CITED. 


Case  V.  Abeel 
Cass  V.  Rudele 

V.  AVaterliouse 
Cassell  V.  Collins 
Cassaa^r  v.  Strode 
CathoW^.  Keirnanhan 

I'.  Robinson    247, 

Cator  V.  Pembroke 
Cattle  V.  Gamble 
Cattell  V.  Corrall 
Cave  ti.  Allen 
Chadwick  v.  Maden 
Chamberlain  v.  Lee 
Chambers  v.  Griffiths 

V,  Lecompte 

V.  Massey 
Champion  v.  Brown 

V.  Rigby 
Champlin  v.  Laytin      304, 

Chandler  v.  Spear 
Chaplin  v.  Rogers 
Charlewood  v.  Bedford 
Charnley  v.  Hansbury 
Chivall  V.  Nicholls 
Child  V.  Abingdon 
V.  Godolphin 
Chinn  v.  Heale 
Christian  v.  Nixon 
Church  V.  Brown 

V.  Legeyt 
Church  &c.  v.  Farrow 
Claflin  V.  Carpenter 
Clark  V.  Bell 

V.  Hackwell 
V.  Underwood 
Clarke  v.  Elliott 

V.  Grant 

V.  Hughes 

V.  Rochester 

V.  Wilson 
Clason  V.  Bailey 
Clayton  v.  Gregson 
Cleavland  v.  Burton 
Clement  v.  Durgin 
V.  Evans 
Clerk  V.  Wright 
Clermont  v.  Tasburgh 
Clifford  V.  Laughtou 
Clinan  v.  Cooke  69. 

Clitherall  v.  Ogilvie 
Clinton  V.  M'Kenzie 
Clowes  V.  Higginson 
Clute  V.  Robinson 
Coburn 


237, 


Pago 
389 
'J  1  5 
122 
112 
241 
91 
359,  417, 
429 
427 
110 
291 
383 
G9 
220 
243 

123, 158 

440 

6,  54 

378,  383 
306,  308, 

399,407 
133 
103 

ifl,  284 
449 
400 
44 
452 
296 
36 
274 
251 
172 

110,  129 

317,  319 
155 
341 
451 
173 
214 
436 
447 
117 
167 
308 
127 
425 

145,  147 

294,  334 
247 

122,  149 

358, 437 
125 

166,434 
222 
137 


Page 

Coe  V.  Ilarrahan  64 

Colli n  V.  Cooper  194 

Coles  V.  Brown  323 

r.  Trecothick  101,122,155, 
354,  365,  389,  396,  440 

Collard  v.  Groom  295 

Collier  v.  Jenkins  245 

V.  Lanier  306,  307 

Coleman  v.  Garsigues  64,  65 

Colson  i\  Thompson  26 

Colton  V.  Wilson  258 
Connnonwealth  v.  Harndcn      86,  87 

Conant  v.  Jackson  352 

Concord,  &c.  v.  Gregg  333 

Conner  v.  Banks  427 

Conwell  V.  Claypool  36 

Conolly  V.  Parsons  77 

Cook  V.  Clayworth  352 

V.  Cole  354 

V.  Stearns  129,  136 

Cooke  ?;.  Toombs  122,123 

Cooper  V.  Emery  256 

Coote  V.  Coote  76 

V.  Mammon  407 

Coppin  V.  Fernyhough  281 

Cornwallis's  case  409 

Cordage  v.  Cole  155 

Cory  V.  Cory  352 

Costigan  v.  Hastier  267 

Coster  V.  Turner  219 

Coslake  v.  Till  165,  187 

Cottington  v.  Fletcher  452 

Cotton  V.  Ward  193,  194 

Cottrell  V.  Watkins  212,  257 

Coward  I'.  Odingsale  187 

Cowley  V.  Watts  17,  169 

Cowper  V.  Bakewell  43 

Cowgill  V.  Oxmantown  220 

Cox  V.  Cox  154 

Craddock  v.  Cabiness  350 

V.  Shirley  223 

Crafts  V.  Aspinwall  39 

Craig  V.  Kittredge  322 

Crawford  v.  Barkley  66 

V.  Morris  177 

Crockford  v.  Alexander  9 

Crofton  V.  Ormsby  281,  410 

Crompton  v.  Melbourne  421 

Croome  v.  Lediard  172 

Crosby  v.  Percy  268 

V.  W^adsworth  105 

Crosse  v.  Lawrence  234 

Crowden  v.  Austin  78 

Cruise  v.  Christopher  355 

Cruso  V.  Crisp  73 

Crutchfield  V.  Haynes  387 


INDEX   TO    CASES    CITED. 


XXI 


Page 

Crutchley  v.  Jervingham 

71,  448 

Cudburrv  v.  Duval 

385 

Cufi"  V.  Penn 

102 

Cullum  V.  Brancb  Bank 

418 

Cummings  v.  Antes 

18 

Cunningham  c.  Sharp 

240 

Curtis  V.  Bhxir 

184 

•           V.  Created 

95 

V.  Mundy 

401 

Curtiss  V.  Hoyt 

141 

Cutler  V.  Sikes 

110 

V.  Simons 

449 

Cutts  V.  Salmon 

79 

V.  Thodey              200, 

204,-224 

D. 


Daggett  V.  Daggett  211 

Dakin  v.  Cope  45 

Daly  V.  Duggan  23 

V.  Osborne  251 

Dalby  v.  Pullen  219,  240,  295 

Daniel  v.  Mitchell  339 

Daniels  v.  Adams  65,  72 

V.  Davison  265,  402,  409, 

415 

Darris's  case  5 

Dare  v.  Tucker  256 

Darcus  v.  Crump  384 

Davidson  v.  Little  358 

Davie  v.  Beardsham  5 

Davies  v.  Tilton  173 

Davis,  Ex  parte  396 

V.  Farr  113 

V.  Rogers  322 

V.  Symonds  177,  433 

V.  Townsend  112,451 

Davinney  ik  Morris  382 

Dawson  v.  Brinckman  261 

V.  Yates  300 

Day  V.  Newman  359,  441 

Deane  v.  Rastron  355 

Dearborn  v.  Cross  175 

Delane  v.  Moore  406 

Deller  v.  Prickett  98 

Den  i;.  Baldwin  125,137 

V.  M'Knight  384 

Denn  v.  Lecony  84 

Dennis  v.  Loftin  406 

Denston  v.  Morris  419 

De  Bidder  v.  Schermerhorn         169 

Deven  v.  Davenell  89 

De  Vesme  v.  De  Vesme  47 

Deverell  v.  Bolton  230,  266,  267, 

272,  291 


Page 
Dick  V.  Donald  58 

Dickinson  v.  Adams  155 

Dill  V.  Shahan  306 

Dixon  V.  Astley  224,  447 

Doar  V.  Gibbes  184,  201,  444 

Dobell  V.  Hutchinson    118,  119,  244, 

278 

V.  Stevens  344 

Dodd  V.  Seymour  441,  454 

Doe  V.  Ashburner  263 

V.  Lufkin  411 

V.  Miller  450 

Doe  V.  Sandham  274 

70,  325,  328, 

338,  374 

Dolittle  V.  Eddy  132 

Doloret  v.  Rothschild  181 

Dominick  v.  Michael  181,  223 

Donald  v.  Morton  351 

Donaldson  v.  M'Roy  78,  80 

Donovan  v.  Fricker  50 

Dooley  v.  Watson  168,  430,  431 

Doolubdass  v.  Ramloll  79 

Dorr  V.  Munsell  352 

Dorsey  v.  Packwood  20 

V.  Way  man  166 

Doty  V.  Wilder  86,  88,  90,  91 

Dowell  V.  Dew  447 

Draper  v.  Bryson  400 

Drayton  v.  Drayton  389 

Drewe  v.  Corp  234,  244 

V.  Hanson  238 

Drury  v.  Conner  148 

Dryden  v.  Frost  407 

Dubignon  v.  Loud  35 

Duckenfield  v.  Whichcott  325 

Dugan  V.  Cohuille  446,  449 

Duke  V.  Shore  35,  245 

&c.  V.  Worthy  97 

Dumphe  V.  Hay  ward  61 

Dunbar  v.  Tredennick  368 

Duncan  v.  Blair  113 

V.  Cafe  97 

Dunk  V.  Hunter  263 

Dunlap  V.  Mitchell  56 

Dunn  V.  Moore  163 

Durrett  v.  Simpson  313 

Dutch,  &c.  V.  Mott  193,  194 

Duvals  V.  Ross  336 

Dwinal  v.  Holmes  218 

Dyer  v.  Hargrave     41,  45,  236,  238, 

292 
Dykes  v.  Blake  243 


XX  u 


INDEX   TO   CASES   CITED. 


Page 


Earl  V.  Baxter 

257 

Eaton  V.  Sanxter 

9,  389 

402 

V.  Whitalvcr 

57,  143, 

145, 

148,  151 

154 

Edgarton  v.  Peckham 

193 

Ednian  v.  Allen 

207 

Edwards  v.  Burt 

365 

367 

V.  Ilandley 

437 

V.  Ilodding 

95,  98 

V.  M'Leay 

243 

2).  Mcyrick 

379 

383 

Egerton  v.  Jones 

253 

Eichelberger  v.  Barnitz 

389 

Ekins  V.  Tresham 

344 

Eliason  v.  Henshaw 

14 

Elder  v.  Elder 

11 

Ellis  V.  Burden 

178 

213 

V.  Ellis 

159 

161 

V.  Hoskins 

30 

Ely  V.  Stewart 

330 

Emery  v.  Wase 

440, 

442 

Emmerson  v.  Heelis 

76,  89, 

105 

English  V.  Benedict 

341 

Eno  V.  Woodworth 

21 

Enraght  v.  Fitzgerald 

42 

Ensign  v.  Kellogg 

429, 

430 

Erskine  v.  Plummer 

110 

Erwin  v.  Saunders 

197 

Esdale  v.  Stephenson 

42, 

236 

Evans  v.  Brown 

357 

V.  Kingsberry 

313 

V.  Llewellyn 

308 

V.  Prothero 

101 

V.  Roberts 

111 

Eyston  v.  Simonds 

223 

Fagan  v.  Davison  36,  212,  213 

V.  Newson  341 

Fain  v.  Ayres  256 

Farebrother  v.  Simmons  90 

Fairfax  v.  Muse  78 

Falmouth  v.  Thomas  106,  107 

Falls  V.  Carpenter  196 

Fane  v.  Spencer  267 

Farwell  v.  Rogers  32,  206 

Faure  v.  Martin  226 

Fellowes  v.  Gwydyr  340 

Fellows  V.  Fellows  384 

Fenucane  v.  Kearney  154 

Fentiman  v.  Smith  137 

Fenton  D.  Brown  43,99,277 


Pago 

Feret  v.  Hill 

340 

Feme  v.  Bullock 

155 

Ferguson  v.  Tadman 

205 

Fildes  y.  Hooker 

269 

,  274 

Finch  V.  Newuham 

413 

Fingal  v.  Ross 

154 

162 

I'^inley  v.  Lynch 

240 

Fisher  v.  Kay 

434 

V.  Worrall 

336 

Fisk  V.  Lacher 

395 

Fiske  V.  M'Gregory 

93 

Fitch  V.  Casey 

209 

V.  Fitch 

366 

Fitchburg,  &c.  v.  Boston,  &g. 

131 

Fitzgerald  v.  Fauconberge 

408 

Fitzhugh  V.  Wilcox 

351 

Flagg  V.  Mann 

405 

Fleetwood  v.  Green 

227 

,  248 

Fleming  v.  Gilbert 

197 

Fletcher  v.  Button 

209 

Flight  V.  Booth 

245 

V.  Bolland 

435 

Flint  V.  Woodin 

78,86 

Flower  v.  Hartopp 

253, 

291 

Fludyer  v.  Cocker              42,  43 

224 

Folsom  V.  Moore 

125 

129 

Forbes  v.  Deniston 

399 

Ford  V.  Hitchcock 

352 

V.  Lewis 

21 

Fordyce  v.  Ford             234, 

244 

292 

Forster  v.  Hale 

149 

Fort  V.  Bunch 

401 

V.  Clarke 

258 

Fosgate  v.  Herkimer,  &c. 

3 

Foster  v.  Deacon 

206 

Fowle  V.  Freeman 

118 

Fox  V.  Birch 

442 

V.  Mackreth 

348 

395 

Foxlowe  V.  Amcoats 

204 

Frame  v.  Dawson 

157 

Franchot  o.  Leach 

175 

France  v.  France 

446 

Frear  v.  Hardenburgh     20, 

105 

114 

Frederick  v.  Campbell 

312 

343 

Freebody  v.  Perry 

451 

Freer  v.  Hess 

237 

Fripp  V.  Fripp 

356 

Frost  V.  Brunson 

248 

Frye  v.  Shepler 

157 

Fuller  V.  Bennett 

408 

V.  Dame 

386 

V.  Hubbard             30,  37, 

301 

V.  Wilson 

338 

Fyler  V,  Givens 

103 

INDEX   TO   CASES   CITED. 


XXIU 


Gabriel  v.  Smith 
Gaby  v.  Driver 
Gale  V.  Nixon 
Gardner,  Ex  parte 
Garley  v.  Rice 
Garnett  v.  Macon 

V.  Yoe 
Garret  v.  Malone 
Garrett  v.  Garrett 
Garth  v.  Ward 
Gaskell  v.  Durdin 
Gaugmere 
Gell  V.  Watson 
George  v.  Pritchard 

V.  Ri(;hardson 
German  v.  Machin 
Gerrish  v.  Towne 
Getehell  v.  Jewett 
Gibbes  V.  Cobb 
Gibbs  V.  Champion 
Gibson  v.  Clarke 
V.  D'Este 
V.  Jeyes 
V.  Patterson 
V.  Spurrier 
Giddings  v.  Eastman 
Gill  V.  Bicknell 
Gillett  V.  Maynard 
Gillespie  v.  Battle 
V.  Moon 
Gilman  v.  Schwartz 
Gilmore  v.  Johnston 
V.  Morgan 
V.  Wilbur 
Gilchrist  v.  Stevenson 
Gimell  v.  Adams 
Givens  v.  Calder     62, 

Goddard  v.  DivoU 
Gonpertz 
Goodell  V.  Field 
Goodhue  v.  Barnwell 
Good  title  V.  Way 
Goodwin  v.  Lyon 
Goom  V.  Afflalo 
Gordon  v.  Ball 

V.  Trevelyan 
Gore  V.  Gibson 
Gosbell  V.  Archer 
Goss  V.  Nugent 
Gourley  v.  Somerset 
Gowland  v.  De  Faria 
Graham  v.  Hendren 
V,  Nesmith 


Page 


261 

48,  96,  99 

116 

198 

209 

181,359,443 

35,  185 

115 

384 

411 

413 

351 

50 

271 

355 

160,  434,  435 

177,  178,431 

117 

401 

190 

251,447 

337 

383 

190 

243 

382,  389 

68,  70 

302 

123, 143 

323 

27 

446 

318 

133 

401 

66 

118,  123,  148, 

156 

384 

249 

307,  321,  323 

148, 151 

262 

189 

117 

453 

17 

352 

92 

175,  282 

442 

354,  365 

316 

233 


Graham  v.  Oliver 
V.  Yeates 
Grandy  v.  Kittredge 
Granger  v.  Worms 
Grant  v.  Coombs 

V.  Craigmiles 

V.  Johnson 

V.  Munt 

Grantland  v.  Wight 

Gray  v.  Gutteridge 

Green  v.  Armstrong 

V.  Winter 
Greenhill  v.  Greenhill 
Greenlow  v.  King 
Greenlee  v.  Greenlee 
Greer  v.  Caldwell 
Gregor  v.  Duncan 
Gregory  v.  Mighell 
V.  Wilson 
Griffin  V.  Coffey 
Griffith  V.  Depew 
V.  Eby 
V.  Heaton 
V.  Spratley 
Griggs  V.  Woodruff 
Griswold  V.  Smith 
Growsock  v.  Smith 
Guest  V.  Homfi'ey 
Guier  v.  Kelly 
Guitard  v.  Stoddard 
Gunn  V.  Brantley 
Gunnis  v.  Erhart 
Gunter  v.  Halsey 
Gurley  v.  Hiteshue 
Gwynne  v.  Heaton 


Page 

241,  242 

146 

33 

277 

314,  315 

102,  124 

218 

240,  346 

216,  235,  310 

96 

104 

393 

5 

386 

177 

323 

357 

286 

275 

153 

302,  427 

330 

60 

357 

37,  331,424 

308 

46 

180,  236 

384 

177 

388 

92,  93 

145 

326 

356,  367 


H. 

Hackenbury  v.  Carlisle 
Hackney  v.  Jones 
Haden  v.  Weare 
Hale  V.  Crow 
Hall  V.  Betty 

V.  Hall 

V.  Hallet 

V.  Laver 

V.  Smith 
Hallett  V.  Collins 
V.  Wylie 
Halsey  v.  Grant 
Ham  V.  Goodrich 
Hamburgh  v.  Edsall 
Hamilton  v.  Grant 

V.  Hamilton 
V.  Royse 


123, 


378 

38 

306 

53 

230, 267 

145,  149 

378 

227 

276,402 

363 

262 

241 

156 

82 

360 

83,  84 

402 


XXIV 


INDEX   TO   CASES   CITED. 


Pajro 

Ilamniatt  v.  Emerson 

328,  342 

Ilanbury  v.  Litchfield 

27(5 

Ilardacre  v.  Stewart 

95 

Ilardwicke  v.  Sandys 

197 

V.  Vernon 

373 

Hargreavcs  v.  Rothwell 

408 

Harnett  v.  Yielding 

26C 

,435 

Harrington  v.  Hoggart 

48 

V.  Wheeler 

180 

183, 
189 

Harris  v.  Brown 

104 

V.  Miller 

108 

Harrison  w.  Talbot        317 

,318 

,  319 

V.  Town 

440 

Hartly  d.  Wilkinson 

286 

Harvey  v.  Graham 

283 

V.  Montague 

412 

V.  Phillips 

25  7 

V.  Young 

346 

Hatch  V.  Cobb 

445 

V.  Garza 

335 

Hatcher  w.  Hatcher       115 

154 

160 

Hawkes  v.  Eastern,  &c. 

289 

Hawkins  v.  Holmes 

121 

V.  Hunt 

446 

Hawley  v.  Cramer 

391 

Hay  don  v.  Bell 

273 

Hayes  v.  Caryll 

186 

Haynes  v.  Crutchfield 

85,86 

Hays  V.  Hall 

417 

V.  Richardson 

131, 

137 

Hayward  v.  Ellis 

386 

Hazal  V.  Dunham 

78 

Hazelton  v.  Putnam 

125 

Heaphy  v.  Hill 

202 

Hearne  v.  Tenant 

189 

Heeny  v.  Heeny 

128 

Heirn  v.  Mill 

172, 

402 

Hennessey  v.  Andrews 

406 

Hepburn  r.  Auld  193,240,295 

V.  Dunlap  44,47,  63,  195, 

216,  223 

Herbert's  case  411 

Heriot's  Hospital  (Feoffees  of)  v. 

Gibson  169 

Heme  v.  Meers  355 

Herrick  v.  Grow  62 

Hertford  v.  Boore  222 

Heth  V.  Wooldridge  1 76 

Heuer  v.  Rutkowski  444 

Hewit  396 

Hewitt  V.  Isham  131 

Hewlins  v.  Shippam  130 

Hey  ward's  case  132 

Hick  V.  Phillips  438 

Hickman  v.  Grimes  417 


Page 
Higdon  w.  Thomas  58,117,118 

Higgins  V.  Shaw  413 

Higginson  v.  Clowes         88,  92,  174, 

453 

Hill  V.  Barrow  452 

V.  Buckley  237 

V.  Fisher  185 

V.  Ressegien  61,  209 

Hilton  V.  Barrow  452 

Hinde  v.  Whitehouse  89 

nine  V.  Dodd  400,  401,  408 

Hipwell  V.  Knight         181,  198,  204, 

206 

Hitchcock  V.  Giddings  315,  316 

Hobson  V.  Bell  195,  206,  228 

Hoe  i).  Simmons  443 

Ho.en  V.  Simmons  104 

Hoggart  V.  Scott  222 

Holland  v.  Eyre  14 

Hollingshead  i>.  M'Kenzie  123 

Hollis  V.  Whiteing      •  285 

Holman  v.  Crane  22 

Holmes  v.  Holmes  185 

Holt  V.  Clemmons  60,  61 

V.  Payne  60,  61 

Homer  v.  Purser  425 

Hood  v.  Fahnestock  400 

V.  Huff  41 

Hook  V.  Nebeker  35 

Hopcraft  v.  Hickman  442 

Hope  V.  Ellis  264 

Hopkins  v.  M'Laren  412 

Hord  V.  Bowman  148,  154,  157 

Horford  v.  Wilson  32 

Home  V.  Wingfield  268 

Horniblow  v.  Shirley  236 

Hough  V.  Hunt  359 

V.  Richardson   325,  328,  329, 

331,  338,  343,  346 

Houghtailing  v.  Houghtailing       125, 

137 
Howard  v.  Castle  77,  78 

Howe  V.  Dewing  88 

V.  Palmer  103 

Howell  V.  Baker  382 

Howes  V.  Barker  13 

Howland  v.  Norris  47,  240 

Howorth  V.  Deem  403 

Hubbard  v.  Smith  405 

Huddleston  v.  Briscoe         14,  15,  17 
Hudson  V.  Bartrara  196 

V.  Hudson  389 

Hughes  V.  Parker  264 

Hull  V.  Cunningham  310,  314 

Hulme  V.  Heygate  8 

Humphries  v.  Horn  51 


INDEX   TO    CASES   CITED. 


XXV 


Page 

Bage 

Hundley  v.  Lyons        • 

41 

,  319 

Johnson  v.  Jackson 

33 

Hunt  V.  Frost            • 

79 

V.  Johnson 

313 

V.  Gregg 

88 

0.  M'Gruder 

64,  68 

,  446 

V.  Robinson 

4 

V.  Medlicott 

352 

V.  Rousmaniere 

305 

V.  Nott 

365 

V.  Thorn 

55 

V.  Roberts 

98 

Hutchinson  v.  Brown 

330 

,  353 

IK  Ronald 

115 

V.  IMorley 

335 

Johnston  )'.  Glaney 

157 

,  160 

Hyde  v.  Wroughton 

251 

Jolifle  V.  Hite 
Jolland  V.  Stainbridge 
Jones  V.  Caswell 

309 

,310 
400 
375        ♦ 

I. 

V.  Edney 
V.  Flint 

278 
111 

Icely  r.  Grew 

78 

V.  Mudd 

42 

Ide  I'.  Stanton 

116 

117 

V.  Nanney 

74,  89,  95 

Inge  V.  Lippingwell 

175 

V.  Peterman 

160 

liinis  i\  M'Crumuiiu 

317 

V.  Powles 

406 

Irion s  v.  Cook 

65 

i;.  Price 

191 

Irvin  V.  Smith 

415 

V.  Robbins 

189 

Irwin  V.  Harris 

393 

V.  Shackleford 

433 

Ishmael  v:  Parker 

26 

V.  Smith 
V.  Taylor 

403 
333 

J. 

V.  Thomas 
V.  Wood 

• 

379 
2 

Jackson  v.  Catlin 

88 

Jordan  v.  Pollock 

401 

V.  Curtwright 

154 

V.  Sawkins 

284 

V.  Delacroix 

263 

Judd  V.  Ensign 

25 

V.  Given 

401 

Judge  V.  Wilkins 

356 

V.  Gray 

153 

Judson  V.  Wass 

28 

,217 

V.  Keisselbrach 

263 

. 

V.  Ligon 

183 

K. 

V.  Moncrief 

263 

Jacobs  V.  Peterborough 

149, 

159 

Kearney  v.  Taylor 

84,86 

James  v.  Shore 

, 

76 

Keating  v.  Price 

197 

Jane  Hunter 

265 

Keats  V.  Rector 

145 

January  v.  Martin 

42, 

356 

Keen  v.  Stuckely 

441 

Jarrett  v.  Johnson 

172 

Kellogg  V.  Kellogg 

4 

Jarvis  v.  Palmer 

342 

Kelly  V.  Bradford 

445 

Jenison  v.  Hapgood 

384 

Kemeys  v.  Proctor 

89 

Jenkes  v.  White 

109 

Kennedy  v.  Kennedy 

389 

Jenkins  v.  Eldredge 

378, 

402 

V.  Lee 

17 

t^Hogg 

79 

Kester  v.  Rockel 

41 

V.  Spooner 

63 

Ketchum  v.  Stout 

233 

Jennings  v.  Broughton 

331 

Killick  V.  Flexney 

386 

V.  Hoptoa 

249 

Kime  v.  Brooks 

64 

V.  Moore 

407 

Kinard  v.  Hiers 

378 

V.  Selleck 

410 

Kindley  v.  Gray 

221 

Jerrard  v.  Saunders 

406 

Kine  v.  Balfe 

286 

Jarvis  V.  Smith 

34,  123, 

148 

King  V.  Bardeau 

296 

Jervoise  v.  Clarke 

81 

V.  Hamilton 

421 

Jeudwine  v.  Alcock 

253 

V.  Hamlet 

367 

Jolland  V.  Stainbridge 

400 

V.  Hanna 

114 

John  V.  Jenkins 

262 

V.  King 

225 

Johns  V.  Reardon 

406 

V.  Morford 

192,  400, 

437 

Johnson  v.  Collins 

37,  54 

213 

V.  Wilson 

201, 

236 

VOL.   I. 


XXVI 


INDEX   TO   CASES   CITED. 


Page 

Page 

Kinsman  ?>.  Kinsman 

414 

Lindsay  tJ.  L}'nch 

285 

453 

Kirby  v.  Harrison 

2 

181 

Linscott  V.  Buflk 

4 

196 

Kitchen  v.  Herring 

166 

440 

V.  M'Intire 

143 

Knatchbull  v.  Grueber 

210, 

243, 

Litchfield  v.  Cudwortli 

388 

422 

Livingston  v.  Peru,  &c. 

340 

Knight  V.  Crockford 

117 

Lloyd  V.  Collett                98 

183 

198 

Knotts  V.  Geiger 

400 

V.  Crispe 
V.  Lloyd 
Lockey  v.  Lockey 

274 

31 

145 

L. 

Logan  V,  M'Ginnis 
V.  Wienholt 

439 
430 

Lacon  v.  Mertin 

155 

156 

London,  &c.  ?'.  Winter 

436 

Lafferty  v.  Whitesides 

4 

V.  Richmond 

438 

Lamas  v.  Bayly 

109 

Long  r.  Collier 

293 

Lambert  ?>.  Bainton 

396 

Lord  V.  StepV'ns 

205 

439 

Lang  V.  Gale 

206 

V.  Underdunck 

62 

148 

Langford  v.  Pitt 

7 

Lowe  V  Manners 

250 

Lanier  v.  Hill                 326 

328 

425 

Lowell  V.  Mutual,  &c. 

427 

Lansdowne  v.  Lansdowne 

305 

Lowry  v.  DufFerin 

118 

Lathrop  V.  Hoyt      ' 

153 

Lowther  v.  Carlton 

400 

408 

Lawes  v.  Bennett 

7 

V.  Carril 

284 

Lawless  v.  Mansfield 

382 

V.  Lowther 

354 

Lawrence  v.  Dole 

209 

216 

Lubin  V.  Lightbody 

251 

Laythourp  v.  Bryant 

119 

270 

Luce  V.  Cooley 

126 

Leach  v.  Mullett 

294 

Ludlow  V.  Grayall 

427 

Leak  v.  Morrice 

162 

Luf  kin  V.  Nunn 

411 

Leas  V.  Eidson 

310 

323 

Lumsden  v.  Fraser 

9 

Ledford  v.  Ferrell 

112 

Lutweller  v.  Lumell 

201 

Lee  and  Hemingway,  in  re 

24 

Lyman  v.  United  Ins.  Co. 

11 

V.  Dean 

334 

V.  United  States  Bank 

36 

V.  Munn 

48,  96 

Lyndsay  v.  Lynch 

157 

Legge  V.  Croker 

275 

Lynn  v.  Lynn 

16 

Leland's  Appeal 

450 

Lysney  v.  Selby 

343 

Lenehan  v.  M'Cabe 

407, 

408 

Lyon  V.  Annable 

301 

Le  Neve  v.  Le  Neve 

399, 

400 

V.  Jones 

389 

Lennonr  v.  Napper 

429 

Leonard  v.  Leonard 

329, 

351 

V.  Vredenburg 

103 

M. 

Le  Roy  v.  Beard 

66 

Lesley's  case 

395 

Mackreth  v.  Marlar 

188 

Leslie  v.  Tompson 

239 

Maddeford  v.  Austurick 

355 

Lessee  of  Wright  v.  Deklyne 

94 

Maddox  v.  Maddox             • 

406 

Lester  v.  Bartlett 

113 

Madeira  v.  Hopkins 

20 

V.  Mahan 

355 

Magennis  v.  Fallon 

346 

Lesturgeon  v.  Martin 

250 

Main  v.  Melbourn 

155 

Levi  V.  Levi 

82 

Majoribanks  v.  Hovenden 

407 

408 

Levy  V.  Lindo 

201 

Malins  v.  Brown 

152 

V.  Merrill 

103 

V.  Freeman 

316 

V.  Pendergrass 

75 

Mallory  v.  Mallory 

434 

Lewin  V.  Guest 

220 

236 

Manley  v.  Cremonini 

26 

Lewis  V.  Clifton 

290 

Mann  v.  Betterly             20 

350 

354 

V,  Herndon 

258 

V.  Pearson 

311 

V.  Lechmere 

183 

441 

Manning,  Ex  parte 

46 

V.  McLemore 

325 

326 

Marcey  v.  Darling 

141 

Liggins  V.  Inge       125,  128 

325 

326 

Margravine,  &c.  v.  Noel 

227 

248 

Lightfoot  V.  Heron 

360 

Markham  v.  Stevenson 

33 

INDEX   TO    CASES    CITED. 


xxvu 


Page 

Marsb,  Ex  parte  396 

V.  Hyde  102 

Marston  v.  Roe  5,  6,  64 

Martin  v.  Mitchell          •  360 

V.  Pycroft  109 

V.  Raulett  82 

Maryland,  &c.  v.  Schroeder  152 

Mason  v.  Armitage  308,  437 

V.  Crosby  66 

V.  Martin  388,  390 

V.  AVallace  189,  191 

Massey  v.  M'lhvain  145 

Matthews  v.  Dana  250 

V.  Demerritt  405 

V.  Light  71 

Maure  v.  Heffernan  70 

Maxwell  r.  Wallace  112 

Mayo  V.  Purcell  444 

Mays  V.  Swope  223 

M'Aninch  v.  Laughlin  307 

M'Artee  v.  Engart  20 

McCants  v.  Bee  384 

McClure  v.  McClure  143 
McComb  V.  Wright            75,  88,  248 

McCraw  v.  Gwin  60 

McCrea  v.  Purmort  117 

McCreight  v.  Aiken  351 

M'Dernied  v.  M'Cartland  62 

McDowell  V.  Simms  80 

McEIderry  v.  Shipley  321 

McFadgan  v.  Eisensmidt  255 

McFariand  v.  Mathis"  20 

McFerrin  v.  Taylor  325 

McGehee  v.  Gindrat  401 

V.  Jones  212 

McKay  v.  Carrington  297,  300 

McKee  ?;.  Phillips  154 

McKinney  v.  Pinchard  355,  364 

McLaughlan  v.  Shepherd  402 

M'Lelland  v.  Creswell  312,  343 

McMahan  v.  Davis  25 

McMechan  v.  GrifEng  401,  405 

McMeekin  v.  Edmund  375 

McMullen  v.  Riley  108 

McQueen  v.  Farquhar  236 

Mead  v.  Orrery  406 

V.  Randolph  439 
Meadows  v.  Meadows        88,  91,  121 

Mechelen  v.  Wallace  108 

Meredith  v.  Macoss  64 

V.  Naish  •     154 

Merry  v.  Abney  406 

Mesnard  v.  Aldrldge  94 

Metcalfe  v.  Pulvertoft  412 

Meux  V.  Maltby  414 

Middleton  v.  Wilson  434 


Page 

Miles  V.  Langley 

404 

Mill  V.  Hill 

405 

Millar  v.  Campbell 

78,81 

Miller  v.  Auburn,  &c. 

126 

V.  Blandist 

155 

V.  Irvine 

103 

V.  Pelletier 

89 

Milligan  v.  Cooke 

277 

Mills  V.  Oddy 

98 

271 

Milner  v.  Mills 

5,  6 

Milnes  v.  Grey 

442 

443 

Minchin  v.  Nance 

45 

Minor  v.  Edwards 

229 

Ex  parte 

253 

Minturn  v.  Allen 

75 

V.  Seymour 

435 

Mtchell  V.  Hayne 

95 

V.  Wilson 

185 

Moale  V.  Buchanan          11, 

120 

,  150 

Molineux,  Ex  parte 

396 

Molony  v.  Kernan 

411 

MoncriefF  v.  Goldsborough 

78 

Mouk  V.  Huskissou 

42 

IMontesquieu  v.  Sandys 

383 

Moore  v.  Anders 

2 

V.  Beasley 

145 

V.  Blake 

180 

%■).  Edwards 

287 

V.  Moore 

71 

V.  Rawsou 

128 

V.  Small 

161 

More  V.  Mayhew 

400 

V.  Sniedburgh 

221 

,  224 

Moreland  v.  Lemasters 

151 

Morgan,  Ex  parte 

396 

V.  Holford 

168 

V.  Morgan 

62 

V.  Shaw  51,  249,  451 

Morley  v.  Cook  227,  299 

Morphett  v.  Jones  286 

Morris,  &c.  v.  Emmett  310,  317 

V.  Kearsley  260 

V.  Timmins  289 

Morrison  v.  M'Leod  352 

Morse  v.  Copeland  129,  130 

V.  Merest  24 

Morss  V.  Elmendorf     313,  315,  316, 

419,  420 

Mortimer  v.  Orchard  149,  286, 

453 
Mortlock  V.  Buller        193,  241,  246, 
.    304,433,436,437 
Morton  v.  Dean  90 

Moss  V.  Matthews  98,  194,  249 

Mountford  v.  Scott  408 

Moyl  V.  Home  165 


XXVIH 


INDEX   TO    CASES   CITED. 


Mumford  v.  Wliitney 


125,  129,  130, 
137 


MundorfTf.  Howard 
]\Iundy  V.  JolifTe 
Murdock's  case 
INIurphy  v.  Marland 
Murray  v.  Lylburn 
V.  Palmer 
Muskett  V.  Hill 
Musselman  v.  Eshlenian 
Myers 
Mynn  v.  Joliffe 

N. 

National  Fire  Ins.  Co.  v. 
Neelson  v.  Sanborne 
Nelson  v.  Aldridge 

V.  Carrington 

V.  Matthews 

11.  Nelson 
Neshit  V.  Moore 
Nettleston  v.  Sikes 
Newham  v.  May 
Newman  v.  Chapman 

V.  Rogers 
Newton  V.  Swazey 
NicboU  V.  Chambers 
Nichols  ('.  Johnson 
Nicholson  v.  Mifflin 
Nickerson  v.  Saunders 
Nodine  v.  Greenfield 
Nolcn  V.  Gwynne 
Norfolk  V.  Worthy 
Norton  v.  Hathaway 

V.  Herron 
Notson  i\  Barrett 
Nott  V.  Hill 
N.  Y.  &c.  V.  Pi.xley 


1,  449 

149 

889 

3 

412 

50 
132 
391 
384 

38 


Loomis     81 

103 

95 

310 

310,  319 

105,372 

433 

110, 135 

336, 419 

412,419 

183 

123,  145 

229 

120 

64 

25 

193 

406 

317 

333 

70 

290 

364 

15 


Owen  V.  Thomas 
Owings  V.  Baldwin 
Oxenham  v.  Esdaile 


Pnjre 

101,  166 

209 

427 


181 


O. 

Oatman  v.  Walker 
Ogilvie  V.  Foljambe 

Oliver  V.  Court 
Olmstead  w.  Miles 
O'Neill 

O'Keilly  v.  Thompson 
Orme  v.  Broughton 
Ormond  v.  Anderson' 
O'Rourkc  V.  Pcrcival 
Osborne  v.  Bremar 
Osgood  V.  Franklin 


38 

94,  117,  211, 

267 

86,  371 

104 

386 

147,  157 

48 

15 

277 

312 

356,  358 


Packard  v.  Richardson  103 

Page  V.  Adam  301 

V.  Hughes  181,  191 

Paine  r.  Meller  199,215 

Painter  v.  Henderson  384,  389 

Parham  v.  Randolph  295 

Parker  v.  Frith  187 

V.  Grant  348 

V.  Parker  450 

V.  Parmelec  •   209 

?;.  Perkins  31,217 

V.  Staniland  109 

V.  Wells  154 

Parkhurst  v.  Van  Cortlandt     2,  117, 
160,  162 

Parks  V.  Brooks 
V.  Jackson 

Parrill  v.  M'Kinley 

Parry  v.  Frame 

Parsons  v.  Camp 

Pasley  i'.  Freeman 

Paterson  v.  Lonjr 


Paton  V.  Rogers 
Patton  V.  M'Clure 
Paul  V.  Squibb  > 
Pawle  r.  Gunn 
Payne  r.  Atterbury 

V.  Cave 
Peacock  v.  Evans 
PearsoU  r.  Frazer 
Pearson  v.  Williams 
Redder,  Ex  parte 
Pember  v.  Mathers 
Pendergast  v.  Meserve 
Penn  v.  Baltimore 
Pennock  v.  Tilford 
Pennock's  Appeal 
Perkins  v.  Rice 

V.  Wright 

Perring  v.  Brooke 

Perry  v.  Fitzhugh 

V.  Rice 

V.  W^heeler 

Petersen  v.  Dickey 

V.  Orr 
Pettus  2'.  Smith 
Phillips  V.  Bucks 

V.  Hunnewell 


424 

415 

118,446 

276 

126 

346 

272 

193,  241,  249 

160 

402 

145 

427 

75 

364,  367 

201 

23 

396 

282* 

32 

430 

336 

81 

61,  335 

437 

262 

133 

29 

185 

25 

4 

426 

339 

103 


V  Thompson     109,  148,  163 


INDEX   TO   CASES   CITED. 


XXIX 


•  Page 

Phippen  V,  Stickney  82,  85 

Phyte  V.  Warden  343 

Piatt  V.  Oliver  82 

Pidcock  V.  Bishop  348 

Piei'ce  i'.  Harrington  56 

V.  Nichols  194,  222 

Pierrepont  v.  Barnard  104,  131 

Pike  V.  Butler  280 

Pile  V.  Shannon  325 

Pillage  V.  Annitage  348 

Pilmore  v.  Hood  344 

Pinckard  v.  Pinckard  449 

V.  Woods  340 

Pincker  v.  Curteis  197 

Pinckney  v.  Hagadorn  87,  88 

Pipkin  V.  James  26 

Pitchers  v.  Edney  100 

Pitt  V.  Petway  389 

V.  Smith  352 

Plummer  c.  Owens  121 

Poag  V.  Sandifer  123 

Pollard  V.  Kinner  154 

Pomeroy  v.  Drury  5  7 

Pomroy  v.  Stevens  406 

Poole  V.  Shergold  237,  249,  259,  444 

Pope  V.  Henry  406 

Popham  V.  Eyre  147 

Popkin  w.  James  121 

Pordage  v.  Cole  30 

Porter  v.  Vaughn  298 

Portman  v.  Mill  42,  195,  252 

Portmore  v.  Taylor  365 

Potter  I'.  Everitt  20 

V.  Potter  5 

Powell  V.  Dillon  402,  409 

V.  Edmunds  93,  101 

Powers  V.  Bridges  35 

V.  Hale              •  20 

Pratt  V.  Carroll  183 

V.  Law  298,  420 

V.  Philbrook  325,  330 

Preble  v.  Baldwin  109 

Prentice  v.  Aehoi'a  352 

Prentiss  v.  Russ  343 

Preston  u.  Merceau  172,281 

V.  Tubbin  408 

Prevost  V.  Gratz  388 

Price  V.  Assheton  266 

V.  Berrington  425 

i;.  Dyer  176,266 

V.  Griffith  166 

w.  North   51,227,242,291,293 

V.  Williams  263 

Prince  v.  Case  129,  134 

Pringle  v.  Samuel  334,  335 

Pritchard  v.  Ovey  191 


Pago 
Proctor  V.  Jones  102 

Prothro  v.  Smith  209 

Providence,  &c.  v.  Thurbcr  131 

Pugh  V.  Good  116,  148,  161 

Purcell  V.  M'Cleary  166 

Purvis  V.  Rayer  267,  268 

Putnam  v.  Westcott  301 

Putney  v.  Day  104,  133 

Pyke  V.  Williams  154 

Pyrke  v.  Waddiugham  211 


Q. 


Quackenbush  v.  Leonard  386 

Quesnell  v.  VVoodlief  310,  315 


R. 


RadcliflTe  v.  Warrington  98,  183, 188 

Radford  v.  Wilson  415 

Radnor  v.  Shafto  1 

Ramsay  v.  Brailsford        30,  41,  224, 

430,  443 

Ramsbottom  v.  Tun  bridge  121 

Raness  v.  Wall  71 

Rankin  v.  Matthews  94 

V.  Maxwell  295 

V.  Simpson  449,  450 

Ransom  v.  Shuler  419 

Read  v.  Walker  35,  424,  426 

Redding  v.  Wilkes  147 

Reed  v.  Chambers  199 

V.  Noe  443,  444 

V.  Redman  180 

V.  Vidal  54 

Reed's  Heirs  v.  Hornback  291 

Regan  v.  Walker  427. 

Reinicker  v.  Smith  353 

Remington  v.  Irwin  203 

Renshaw  v.  Gans  344 

Rex  V.  Christie  95 

V.  Dunston  124 

V.  Inhabitants  of  Horndon     126 

V.  Inhabitants  of  Standon      126 

V.  Marsh  80 

j;.  Snow  450 

V.  Taylor  73 

Reynolds  v.  Dunkirk  113,  123 

Ex  parte  397 

V.  Nelson  202 

V.  Vance  295 

V.  Waring  149,  449 

Rhodes  v.  Rhodes  151,  156 

Rice  V.  Carter  113 


XXX 


INDEX   TO   CASES   CITED. 


Kich  r.  Jackson 
Ricliarils  v.  Kdirk 
Ric'ker  v.  Kelly 
Riddle  v.  Brown 
Ridley  v.  MXairy 
Ringgold  V.  Bryan 

V.  Ringgold 
Ringo  7^  Binns 
Rippingall  r.  Lloyd 
Roach  V.  Rutherford 
Rob  V.  Butterwick 
Robbins  v.  Bates 
Roberts  v.  Berry 
V-.  Massey 
V.  Tunstall 
V.  A\'yatt 
Robinson  v.  Green 

V.  Ketdetas 
V.  Milner 
V.  Musgrove 
ih  Page 
Robson  V.  (.'ollins 
Roche  V.  O'Brien 
Rodman  v.  Zilley  324, 
Rodwell  V.  Phillips 
Roffey  V.  Shallcross 
Rogers  v.  Atkinson 
V.  Colt 
V.  Hoskins 
V.  Rogers 
V.  Saunders 
V.  Wiley 
V.  Woodbury 
Root  V.  Yeomans 
Roots  V.  Dormer 
Roper  V.  Coombes 
Rose  V.  Bates 
V.  Calland 
V.  Cunynghame 
Rosevelt  v.  Fulton 
Routledge  v.  Grant 
Rowton  V.  Rowton 
Roy  V.  Willink 
Royster  v.  Shackleford 
Rue  V.  Rue 
RufFey  v.  Henderson 
Rugge  V.  Ellis 
Ruggles  V.  Lesure 
Rupert  V.  Mark 
Russell  V.  Nixon 

V.  Richards 
Russell's  Appeal 
Rutherford  v.  Ruff 
Rutledge  v.  Smith 
Ryan  v.  Hall 
Ryle  V,  Brown 


Pit  so 

• 

Paso 

173 

282 

s. 

22,  27 

166 

140 

Sage  V.  M'Guire 

60 

108 

V.  Sherman 

39 

143 

V.  Wilcox 

103 

401 

Sailors  v.  Gambril 

149 

374 

3H9 

Sainsbury  v.  Matthews 

111 

372 

Salmon  v.  Cutts 

879 

196 

203 

Sampson  v.  Burnside 

126 

224 

426 

Sanderson  v.  Walker 

397 

10 

Sanson!  v.  Rhodes 

207 

391 

Sargeant  v.  The  State  Bank     5 

2,  53 

205 

Sargent  v.  Adams 

179 

,  273 

46 

Saunders  v.  Annesley 

329 

368 

V.  Wakefield 

103 

259 

301 

Savage  v.  Carroll           149 

157 

,  165 

76 

Savile  v.  Savile 

99 

434 

Savory  v.  Underwood 

192 

253 

Schedda  v.  Sawyer 

71 

294 

Schmidt  v.  Livingston 

437 

176 

Schreiber  v.  Creed 

171 

287 

Scorell  V.  Boxall 

105 

368 

Scott  V.  Fields 

182 

,  183 

350,  353 

358 

V.  Hanson 

346 

105 

109 

V.  Nixon 

257 

241 

V.  Thorp 

254 

306 

307 

Seagood  v.  Meale 

155 

31 

Seaman  v.  Van  Rensselaer 

212 

409 

V.  Vawdrey 

238 

389 

Sears  v.  Brink 

103 

181, 

182 

Sedgwick  v.  Stanton 

439 

401 

Seidensparger  v.  Spear 

129 

141 

Sellick  V.  Trevor 

230 

256 

389 

Selm  V.  Slade 

259 

76, 

236 

Selsey  v.  Rhoades 

395 

295 

Senter  v.  Drake 

272 

83 

Sergeant  v.  IngersoU 

401 

435 

Seton  V.  Slade 

194 

205 

5,  122, 

144 

Sewall  V.  Jones 

77 

307,  323, 

335 

Seymour  v.  Delancey     20, 

211. 

216, 

265, 

280 

352,  356,  358,  417,  433 

436 

440 

103, 

123 
241 

Shackleford  v.  Handley, 

325, 

341, 
435 

423 

Shannon  v.  Bradstreet 

147 

60 

Shaw  V.  Hayward 

207 

130 

V.  Livermore 

32 

436 

V.  Thackray 

353 

137 

Sheldon  v.  Cox 

400 

406 

40f, 

405 

Shelton  v.  Homer 

385 

117 

V.  Livins 

92 

141 

Shepherd  v.  Burkhalter 

406 

5 

V.  Keatley 

268 

350 

Sherwin  w.  Shakspeare 

43, 

255 

42 

Sherwood  v.  Robins 

294 

174 

V.  Salmon 

329, 

341 

364 

Shiels  V.  Stark 

177 

INDEX   TO   CASES   CITED. 


XXXI 


Shippey  v.  Derrlson 
Shirley  v.  Davies 
V.  Shirley 
V.  Spencer 
V.  Stratton 
Sboup  V.  Cook 
Shuffleton  i\  Jenkins 
Simms  v.  Killian 
Simmons  o.  Cornelius 

V.  Hill 
Simon  v.  Motivos 
Simonds  v.  Catlin 
Simonton  v.  Gandolfo 
Sims  V.  Lewis 
Sites  V.  Keller 
Sloo  V.  Law 
Slosson  V.  Beadle 
Small  V.  Atwood 

V.  Jones 
Smart  v.  Harding 
Smith  V.  Arnold 

V.  Babcock 

V.  Baker 

V.  Brailsford 

V.  Burnham 

V.  Carney 

I'.  Chaney 

V.  Clarke 

V.  Dolman 

V.  Greeley 
•         i\  Greenlee 

V.  Jackson 

V.  Lloyd 

V.  Low 

V.  Patton 

V.  Phillips 

V.  Richards 

V.  Robertson 

V.  Simons 

V.  Smith 

V.  Surman 

V.  Tombs 

V.  Underdunck 

V.  Wyley 
Sohier  v.  Williams 
Soles  V.  Hickman 
Sollee  V.  Croft 
Somerville  v.  Trueman 
Sorrel  v.  Carpenter 
Soule  V.  Heerman 
Souter  V.  Drake 
Southby  V.  Hutt 
Southeastern,  &c.  v.  Knott 
Spindler  v.  Atkinson 
Spoiford  V.  Hobbs 
Spratt  V.  Jefiery 


Piige 

119,  284 

346 

26,  117,427 

145 

348,437 

290,  425 

182,  183 

112 

1-55 

146, 150 

88,  89 

54 

114 

422 

154 

196 

23 

49,  301,  302,  427 

85,  86 

109 

90,  117,120 

325,  327 


404 

124 

191 

417 

27 

78,  80 

192 

321 

-     82,  84 

252 

447 

401 

29 

410 

327 

309,  324 

125 

40,  148,  154,  318 

111 

283 

146, 148 

101 

210 

450 

393 

118,  144 

412 

296 

267 

256,  259 

435 

341,  387,  390 

64,  65,  67 

226,  271 


306, 


129, 


242, 


Spurrier  v.  Elderton 

V.  Hancock. 

V.  May  OSS 
Staines  v.  Shore 
Stanley  r.  Robinson 
Stansfield  v.  Johnson 
Stanton  v.  Tattersall 
Stapylton  v.  Scott 
State  (The)  v.  Gaillard 

i\  Mayes 
State  of  Illinois  v.  Delafield 
Stebbins  v.  Eddy 
Stedwell  v.  Anderson 
Steed  V.  Whitaker 
Step  V.  Alklre 
Stephens  v.  Winn 
Stevens  v.  Adamson 

V.  Guppy 

V.  Ryerson 

V.  Stevens 
Stevenson  v.  Maxwell 
Stewart  v.  Attiston 

V.  Doughty 

V.  Stewart 
Stillwell  V.  Wilkins 
St.  John  V.  Benedict 

V.  Bishop 
St.  Mary's  v.  Stockton 
Stockett  V.  Taylor 
Stokes  V.  Moore 
Stone  V.  The  State 
Story  V.  Windsor 
Stowell  V.  Robinson 
"Strafford  v.  Bosworth 
Stuart,  Ex  parte 
V.  Kissara 
Stubblefield  v.  Beazely 
Sturdevant  v.  Pike  • 
SulUvant  v.  FAnklin,  &c. 
Swan  V.  Drury 
Swartwout  r.  Burr 
Sweeny  v.  Miller 
Switzler  v.  Skiles 
Sykes  v.  Giles 
Symonds  v.  Ball 
Symondson  v.  Tweed 


Tanner  v.  Elworthy 
V.  Smith 

Taylor  v.  Barker 
V.  Brown 
V.  Fleet 
V.  Green 


Page 

95,  99 

186 

50 

78,  80 

329 

89 

320 

308 

329 

67 

38 

313,  319 

320,  322 

408 

297 

103 

281 

258,  451 

188 

137,  139 

41,  42 

291,  293 

105 

305 

354,  355 

438 

6 

443 

401 

121 

86 

400 

201 

14,  164 

257 

394 

38 

71 

132 

217 

62 

109 

82 

87 

89 

149 


386 
299 
402 
201,  248 
346 
58 


XXXll 


INDEX   TO   CASES   CITED. 


Pnge 

Taylor  v.  Lonprwortliy 

4r)5 

V.  JMartindale 

269 

•Ii)l 

V.  Patrick 

350 

V.  Ross 

101 

V.  Salmon 

372 

V.  Stibbei-t          281 

409 

410 

V.  Waters 

125 

Teall  V.  Anty 

112 

Tebbott  V.  Voules 

9 

Teiiipest  V.  Fitz<i;i;rald 

103 

Temple  v.  Brown 

271 

Tenny  ('.  Childs 

263 

Terrell  v.  Kirksoy 

233 

Tevis  V.  Richardson 

417 

Thayer  o.  Rock 

108 

0.  Viles 

112 

Thellusson  v.  Woodford 

7 

The  Mattcawan,  &c.  v.  Bentley   333 

Thomas  v.  Dering  241,  246 

V.  Sorell  135 

Thompson  i-.  Dulles  186,212 

V.  Gould  159 

I.-.  Hallet         '  392 

V.  Scott  148,  149 

V.  Tod  123,  146 

Thomson  v.  Miles  301 

Thornton  v.  Henry  145 

V.  Kempster  114 

Thorp  V.  M'Culium  389 

Thresh  v.  Rake  201 

Thurston  v.  Franklin  College  34 

Thwaites,  Ex  2)a)-le  396 

Tibbs  V.  Barker  145 

Tiernan  v.  Roland        34,  37,  38,  60," 

180,  189,  190 

Tilton  V.  Tilton  10,  145 

Tindal  v.  Cobhara  447 

Todd  V.  Gee  47,  236,  238 

Tohler  ;;.  Folsom        ♦  104 

Tomkins  v.  White  279 

Tomlin  v.  M'Chord  209,  443 

Tomlinson  v.  Savage  78,  81,  236 

Toppin  i\  Lomas  112 

Torrey  v.  Buck  436 

Toulmin  v.  Steere  407 

Tourville  v.  Naish  400 

Towle  i'.  Leavitt  78,  79 

Town  V.  Needham  151 

Townsend  v.  Corning  68 

Townshend  v.  Champernowne     194, 

195 
ih  Stangroom       174,  175 
Trefusis  v.  Clinton  45 

Trevelyan  v.  White  373,  414 

Trimble  v.  Boothby  415 

Tripp  V.  Cook  416 


Troup  ';.  Wood 
Trower  c.  Newcome 
Trull  /•.  Eastman    » 
Tucker  v.  Clarke 
V.  AVoods 
Tufts  V.  Tufts 
Tunslall  v.  Trappes 
Turner  v.  Harvey 
Tuthill  V.  Babcock 
Twining  v.  Morricc 
Twistleton  v.  (iriOith 
Tyler  V.  Beversham 
Tyree  v.  Williams 


U. 

Underhill  v.  Horwood 


82,  375 

292,  325 

36  7 

418 

14,  26,  245 

115,  123,  394 

407,  412 

308,  348,  355 

333 

77,  78 

380 

293 

75,  240 


356 


Van  V.  Corpe  174,  274 

Vancouver  v.  Bliss  252 

Vandenburgh  v.  Van  Bergen       132 
Van  Eps  v.  Schenectady        36,  213, 
233,  312 
Vanhorn  v.  Frick  64 

Vawser  v.  Jeffery  9 

Veazie  v.  Williams  78,  81,  86 

Veeder  v.  Fonda  309 

Verlander  v.  Codd  119 

Vernon  v.  Stephens  198 

V.  Vernon  5 

Viclie  y.  Osgood  109,117 

Vigers  v.  Pike  330,  332 

Violet  V.  Patton  103 

Voll  V.  Smith  155 

Voorhees  v.  De  Meyer         190,  193, 
233,  240,  310 
Vowles  V.  Grain;  318 


W. 

W^ain  V.  Warlters  103 

Wainwright  v.  Read  94,  314 

Walker  v.  Advocate-General  74 

V.  Brungard  389 

V.  Constable  88,  96,  99 

V.  Johnson  423 

?'.  Smalhvood  411 

Wall  V.  Bright  8 

V.  Stubbs  324 

Waller  m.  Hendon  285 

Wallins  V.  Kinnard  35,  336 


Wallinger  v.  Hilbert 
Wallis  V.  Harrison 

i\  Sard 
Wallwynn  v.  Lee 
Walter  v.  Maunde 
Walters  v.  Morgan 
V.  Pyman 
Ward  V.  Garmons 

V.  Moore 

?;.  Smith 
Warder  v.  JefFery 
Waring  v.  Hoggart 
Warner  v.  Daniels 
Warren  i\  Richardson 
Warrick  v.  Warrick 
Warwick  v.  Bruce 
Wason  V.  Waring 
Wasson  v.  English 
Waters  V.  Bailey 
?•.  Groom 
V.  Mattingly 
V.  Travis 
Watkins  v.  Gilkerson 

V.  Stockett 
Watrous  v.  Chalker 
Watson  V.  Re  id 
Watts  V.  Waddle 
Webb  V.  Sugar 
Webster  v.  Ela 
Weelhers,  &c. 
Weems  v.  Brewer 
Welch  V   Murray 
Welfbrd  V.  Bcazely 
Wells  V.  Bannister 

V.  Pheiffer 

V.  Smith        37, 


209, 


182, 


V.  Wells 
Wesley  v.  Thomas 
Westall  V.  Austin 
Westerman  v.  Means 
Westervelt  v.  Matheson 
Western  v.  Russell  20,  119, 
Wetniore  v.  White 
Wiialey  v.  Bagenal 

V.  Eliot 
Wheatley  t:  Slade 
Wheaton  v.  Wheaton 
Wiieeler  c.  Collier 

r.  Rowell 

i\  Smith 

V.  Wriglit 
Wlielpdale  v.  Cookson 
Whichcote^'.  LaAvreuce 
Whipple  v.  Foot 
W'hitbread  v.  Brockhurst 


DEX 

TO    C 

ASES   CITED. 

XXXlll 

Piiffo  ! 

Piige 

250 

Whitbicad  v.  Jordan 

401 

134 

\\antchurch  v.  Bevis 

147 

45 

Whitcoml)  >'.  Foley 

249 

406, 

415 

White  V.  Bartlott 

88 

272, 

281 

V.  Caddon 

235 

284 

V.  Damon 

358 

252 

V.  Flora 

356 

256, 

257 

V.  Foljambe 

245, 

267 

7 

V.  Palmer 

351 

389 

7).  Proctor 

88 

204 

White's,  &c. 

141 

278 

Whiteside  v.  Jennings 

2 

I,  63 

422 

Whitman  v.  Weston 

322 

273 

Whitmarsh  ?;.  Walker 

110, 

135 

408 

Whittumore  v.  Gibbs 

112 

110 

Whoi  wood  V.  Simpson 

437 

345 

Wigg  V.  Wigg 

400 

394 

Wiggins  V.  Lord 

97 

386 

Wiggins 

390 

397 

Wigglesworth  v.  Steers 

352 

325 

345 

Wither  v.  Pain 

145 

445 

454 

Wilbur  V.  How 

85 

112 

Wilcox  V.  Bellares 

252 

342 

Wildbahn  v.  Robidoux 

173 

57 

Wilde  i;.  Foote                 95, 

209 

219 

201 

Wildgoose  V.  We'yland 

409 

,  216 

443 

Wilkinson  v.  Fowkes 

372 

386 

V.  Scott 

143 

52 

Wiiks  i\  Davis 

23 

389 

Willan  V.  Willan 

305 

297 

WiUett  V.  Clarke 

190 

84 

William  v  Nevill 

155 

116 

117 

Williams  v.  Edwards 

184 

213 

141 

V.  First  Presbyterian, 

84 

&c. 

391 

184, 

185, 

V.  Llewellyn 

392 

218 

r.  Rogers             4 

1,47 

302 

189 

V.  Shaw 

452 

342 

Williamson  v.  Seaber 

397 

221 

Willis  V.  Jernegan 

357 

181 

185 

Wills  V.  Stradling 

157 

287 

297 

Wilmot  V.  Wilkinson 

214 

,  246 

,  356 

Wilson  I'.  Fuller 

348 

145, 

151 

Wilton  i\  Harwood 

160 

147 

Winch  V.  AVinchester      93, 

174, 

232, 

313 

292 

240 

Winckam  v.  Hawker 

132 

307 

,  323 

Winne  r.  Reynolds        213 

231 

,  232 

7 

9,  90 

Winter  v.  Blades 

44 

126 

V.  Brockwell    • 

141 

363 

V.  Jones 

36 

270 

Winterbottom  v.  Ingham 

248 

,  24* 

390 

Wiswall  c.  McGown 

200 

420 

374 

,  394 

Withy  V.  Cottle               181 

249 

,  250 

105 

Witter  V.  Biscoe 

209 

147 

Wood  V.  Bernal 

198 

XXXIV 


INDEX   TO   CASES   CITED. 


Page 

Wood  V.  (Toodritlge  68 

V.  Hewett  141 

V.  Lake        *  126 

V.  Lambirth  253 

t).  Leadbitter  136,138 

V.  Manley  140 

V.  Midgeley  1  o6 

Woodbury  v.  Parshley  139 

Woodman  i'.  Freeman  425 

Woodeock  v.  Bennett    420,  421,  435 

Woodroffe  v.  Titterton  249 

Woods  V.  Hall  325 

V  Kirk  209 

Wood's  Executor  v.  Hudson  82 

Woodward  v.  Picket  103 

V.  Sceley  125 

Woollam  V.  Hearn  1 74 

Wonnack  v.  Rogers  20 

Worrall  w.  Munn  101,117 

Worseley  v.  De  Mattos  399 

Worsley  v.  Scarborough  408,  412 

Worthy  V.  Johnson  384 


Page 

Wright  V.  Bipg 

15 

V.  Bond 

248 

V.  Dannah 

372 

V.  Howard 

180,  244 

V.  Wilson 

237 

Wynn  v.  Morgan 

222 

Wynne  v.  Griffith 

99 

Yates  V.  Martin  112 

Yeates  v.  Prior  325,  330,  331 

York,  &c.  V.  Mackenzie  396 

Young  V.  Clerk  436 

V.  Frost  326 

Younge  v.  Duncombe  448 


Zickafosse  v.  Hulick 


112 


LAW  OF  VENDORS  AND  PUECHASERS. 


THE    LAW 


OF 


VENDORS   AND   PURCHASERS 


CHAPTER   I. 


NATURE  OF  THE  CONTRACT  FOR  A  SALE  AND  PURCHASE  OF 

LANDS. 


1.  Distinction  between  the  executory 
contract,  and  a  transfer  in  pursuance  of 
it ;  merger,  &c. 

7.  Eight  of  property  and  possession, 
at  law. 

13.  Doctrine  in  erjuitij ;  whether  a  title 
passes. 


15.  Whether  the  purchaser  has  a  de- 
scendihle  and  devisable  interest ;  applica- 
tion of  funds  ;  revocation  find  republi- 
cation of  will,&c.  Devise  by  a  vendor, 
and  the  effect  thereof. 

40.  Reforming  a  deed,  for  variance 
from  the  previous  contract. 


1.  The  law  uniformly  recognizes  the  obvious  distinction 
between  the  contract  of  purchase  and  sale,  (a)  which  is  a 


(a)  An  agreement  to  devise  real  estate  lias  been  held  valid.  MundorfF  v. 
Howard,  4  Md.  459.  See  Radnor  i'.  Shafto,  11  Ves.  447.  A.,  being  in 
treaty  for  the  purchase  of  land,  offered  for  sale  by  B.,  was  informed  by  C. 
that  he  had  a  claim  to  it.  C.  also  inserted  in  a  newspaper  an  advertisement, 
cautioning  all  persons  against  purchasing ;  and  caused  to  be  recorded  a  bond 
of  B.,  binding  himself  not  to  revoke  a  will,  in  which  he  had  devised  the  land 
to  the  wife  of  C,  which  bond  was  also  shown  to  A.  before  he  had  concluded 
the  purchase.  Held,  these  circumstances  were  sufficient  to  constitute  A.  a 
purchaser  with  notice,  notwithstanding,  having  seen  the  will,  he  had  discov- 
ered a  misrecital  of  it  In  the  bond,  and  was  advised  that  he  might  safely 
purchase.  Argenbright  v.  Campbell,  3  Hen.  &  M.  144. 
1 


2  LAW   OF   VENDORS    AND    PURCHASERS.  [cil.  I. 

k 

mere  executory  agreement^  giving  to  each  party  a  valid  claim 
against  the  other,  but  neither  transferring  nor  vesting  anij 
jrrescnt  title;  and  an  actual  convcijance  oi  the  property  be- 
tween grantor  and  grantee,  (a) 

2.  Thus  a  vendor  and  vendee  are  said  not  to  stand  in  the 
relation  of  mortgagee  and  mortgagor}  (b) 

3.  So  it  is  held,  in  general,  that,  as  agreements  for  the  sale 
of  lands  are  executory  contra(?ts,  the  acceptance  of  a  deed, 
in  pursuance  of  a  contract,  is  prima  facie  an  execution  of 
the  agreement,  which  thenceforth  becomes  void,  and  of  no 
further  effect ;  ^  except,  as  is  said,  in  case  of  a  covenant, 
which  does  not  look  to,  nor  is  connected  with,  the  title,  pos- 
session, quantity  or  emblements  of  the  land.^  (c) 

1  Kirhy  v.  Iliirrison,  2  Ohio,  (N.  S.)         ^  Bull  v.  Willard,  9  Barb.G41  ;  Jones 
.326.  V.  Wood,  16  Penn.  25.  »  Ibid. 


(a)  Action  upon  the  followinn;  -writing,  signed  by  both  parties  :  "  This 
certifies,  that  I  have  sold  to"  the  plaintiflf  "about  five  acres  of  land,  more  or 
less,  being  the  same  which  I  bought  of  liira  in  consideration  of  the  same  sum 
which  I  paid  him  for  the  same,  with  interest  from  the  time  I  purchased  the 
same,  till  I  paid  for  it  (supposed  about  six  months)  with  the  expense  of  the 
deed,  also  the  taxes  for  one  year."  Held,  an  executory  contract  for  the 
sale  of  the  land.     Atwood  v.  Cobb,  IG  Pick.  231. 

(h)  But  it  has  been  held,  that  where  lands  are  sold  by  a  bond  or  covenant, 
conditioned  to  make  title  upon  payment  of  the  purchase-money,  and  ex- 
pressly reserving  the  title  to  the  vendor,  till  such  payment ;  the  effect  is  the 
same  as  that  of  a  conveyance  and  mortgage  back ;  —  the  vendor  retains  a 
lien  for  the  price,  even  as  against  subsequent  purchasers  or  incumbrancers, 
with  notice.     Moore  v.  Anders,  14  Ark.  628. 

(c)  Upon  the  same  principle,  a  bond  or  written  agreement  for  conveyance 
merges  all  prior  parol  agreements  and  negotiations.  BuUett  v.  Worthington, 
3  Md.  Ch.  90 ;  Parkhurst  v.  Van  Cortlandt,  1  Johns.  Ch.  273.  But  where  a 
vendor  pointed  out  to  the  agent  of  the  vendee  two  fractions,  when  showing 
him  a  tract  offered  for  sale,  represented  them  as  valuable,  and  gave  a  writ- 
ten description  of  the  improvements  on  the  fractions  to  be  submitted  to  the 
vendee,  and  the  agent  understood  that  the  whole  tract  was  offered,  and  pos- 
session of  the  fractions  with  the  tract  Avas  delivered  to  the  vendee,  but  they 
were  omitted  in  the  deed ;  it  was  held  that  tlie  fractions  were  included  in 
the  sale.     Barraque  v.  Siter,  4  Eng.  545. 


en.  I.]    NATURE  OF  TIML   CONTRACT  FOR  A  SALE,  ETC.        3 

4.  So,  the  purchaser  of  the  interest  of  a  party,  under  a 
mere  executory  contract,  is  presumed  to  buy  with  notice  of, 
and  subject  to,  the  legal  title.^ 

5.  A  covenant,  upon  the  principle  above  stated,  in  an 
agreement  to  sell  and  convey  land,  that  it  shall  be  "  free  and 
clear  of  all  incumbrances,"  is  merged  in  the  subsequent  deed, 
and  the  grantee  can  claim  only  under  the  covenant  in  such 
deed.  So,  though  the  agreement  and  the  deed  are  made  by 
different  parties.^ 

6.  Agreement  for  the  sale  of  land,  the  price  to  be  paid 
"  as  soon  as  it  can  be  ascertained  that  the  title  to  the  prem- 
ises is  good  and  unincumbered."  Held,  the  purchaser  is 
bound  to  examine  the  title  before  taking  his  deed,  and  can- 
not afterwards  claim  under  the  agreement.^ 

7.  So  an  executory  contract  does  not,  at  laiv,  pass  a  title 
to  the  property. 

8.  Bond  to  convey,  on  payment  of  a  certain  sum.  The 
obligee  built  a  house  on  the  land,  without  any  agreement  for 
its  removal,  and  paid  part  of  the  price,  and,  to  protect  the 
property  from  his  creditors,  for  an  inadequate  consideration, 
assigned  the  bond  to  his  son.  In  the  mean  time,  some  of 
the  creditors  had  attached  the  house,  and  caused  it  to  be 
sold  as  personal  property  ;  and,  with  full  notice  of  the  facts, 
took  a  conveyance  of  the  land  from  the  obligor.  .  Held,  be- 
fore the  assignment  of  the  bond,  the  obligee  had  no  attach- 
able interest  in  the  land  ;  that  the  house  was  real  estate  ; 
and  that  the  son,  on  tender  of  the  balance  due  and  demand- 
ing performance  of  the  bond,  might  maintain  a  bill  in  equity 
against  the  obligor  and  the  creditors  for  specific  perform- 
ance."* 

9.  So,  under  a  naked  contract  of  purchase,  which  is  silent 
on  the  subject  of  possession,  the  purchaser  acquires  no  right 
to  possession  or  entry ;  and,  if  he  enter  in  pursuance  of  a 
parol  license  from  the  vendor,  the  possession  is  an  interest 

1  Fosffate  v.  The  Herkimer,  &c.   12         '^  Ibid.  , 
Barb.  352.                                                           *  Murphy  v.  Marland,  8  Cush.  575. 

2  Carr  v.  Roach,  2  Duer,  20. 


4  LAW    OV    VI^NDOttS    AND    HJIU'IIASKUS.  [('II,   I, 

distinct  from  that  acquired  under  the  contract,  and  is  subject 
to  sale  on  execution.' 

10.  And  possession  under  an  executory  contract  will  not 
render  the  contract  valid,  if  otherwise  void  for  illegality. 

11.  Where  a  colonist,  having  a  grant  of  land  in  Texas, 
contracted  to  sell  it  before  the  expiration  of  six  years  after 
receiving  his  grant,  and  to  make  a  full  conveyance  as  soon 
as  the  law  Avould  permit,  and  the  purchaser  went  into  pos- 
session at  tlie  time  of  the  contract,  and  made  valuable  im- 
provements, such  contract  being  contrary  to  law  ;  held,  it 
was  void,  and  could  not  be  enforced.^ 

12.  An  agreement  stated  the  sale  of  certain  lands,  and  the 
vendor  covenanted  for  himself,  his  heirs,  &c.,  to  convey  so 
much  of  them  as  he  held  the  legal  title  of,  to  the  vendee,  his 
heirs,  &c.,  by  a  certain  time,  with  general  warranty,  and  to 
procure  a  third  person  to  convey  such  parts  as  he  was  legally 
entitled  to,  to  the  vendee,  his  heirs,  &c.,  by  a  certain  subse- 
quent time,  with  special  warranty.  Held,  only  an  ordinary 
bond  for  a  conveyance,  which  passed  a  mere  equitable 
estate." 

13.  But,  in  equity,  a  contract  of  sale  of  land  is  not  merely 
executory,  but  the  vendee  becomes  the  owner,  (a)  and  the 
vendor  is  seised  in  trust  for  him ;  which  trust  attaches  to 
the  land,  and  binds  all  who  claim  under  the  vendor  with 
notice^ 

14.  So,  an  article  of  agreement,  uuder  seal,  for  the  pur- 
chase of  land,  is  not  a  mere  chose  in  action,  but  an  interest 
in  the  land,  which  is  within  the  provisions  of  the  recording 

1  Kellogg  y.  Kellogg,  6  Barb.  1 1 6.  ^  L^^'m-ty    y_  Whitcsides,    1    Swan, 

2  Hunt  V.  Robinson,  1  Texas,  748.  (Ten.)  123.' 

*  Linscott  V.  Buck,  33  Maine,  530. 


(a)  So  it  has  been  held,  that  payment  and  entry  vest  even  a  legal  title  in 
the  party  "vvho  holds  a  bond  for  titles,  which  he  may  enforce  by  an  action  at 
law.  Hence,  equity  will  not  interpose  by  injunction,  though  the  obligor  has 
threatened  to  sell  the  property,  or  entered  and  carried  off  the  crops.  Peter- 
son V.  Orr,  12  Geo.  464. 


CII.  I.]    NATURE  OF  THE  CONTRACT  FOR  A  SALE,  ETC.         5 

acts,  and  the  interest  of  the  vendee  may  be  bound  by  judg- 
ment. So,  where  the  vendee,  after  paying  part  of  the  pur- 
chase money,  and  being  in  possession,  assigns  all  his  right  and 
interest  in  the  contract  to  a  creditor  as  collateral  security, 
such  assignment  is  but  a  mortgage,  and,  if  not  duly  recorded, 
will  be  postponed  to  subsequent  judgments.^ 

15.  Upon  the  same  principle,  by  a  general  devise,  an  estate 
passes,  in  which  the  devisor  has  acquired  an  equitable  title 
by  a  contract  of  purchase ;  '^  more  especially  where  a  written 
agreement  for  the  purchase  of  an  estate  has  been  executed? 

16.  So,  an  equitable  title,  acquired  after  a  general  devise, 
passes  by  republication  of  the  will.^ 

17.  In  such  cases,  the  vendor  is  regarded  as  a  trustee  for 
the  vendee.^ 

18.  A  third  person  articled  to  purchase  lands  in  trust  for 
the  testator,  who,  before  any  conveyance  by  will,  disposed  of 
all  his  freehold  estate.  Held,  the  lands  articled  for  passed  by 
the  will.6 

19.  Before  the  making  of  a  will,  the  ancestor  of  the  tes- 
tator had  contracted  for  the  purchase  of  an  estate,  of  which 
possession  was  given,  but  no, conveyance  executed.  The 
purchaser  then  died  intestate,  leaving  the  testator  his  heir  at 
law  and  sole  next  of  kin.  The  testator  then  made  his  will,  and 
afterwards  the  estate  was  conveyed  to  him.  Held,  the  estate 
was  not  after-acquired  property,  but  included  in  the  devise.'' 

20.  One  possessed  of  three  species  of  estates  in  the  county 
of  H.,  viz :  one  by  articles  wholly  executory,  another  execu- 
tory in  part,  and  a  third  (being  an  advowson)  completely 
executed  by  a  recent  conveyance,  devises  to  his  wife  as 
follows :  "All  the  manors,  messuages,  advowsons,  and  here- 
ditaments in  the  county  of  H.,  for  the  purchase  whereof  I 
have  already  contracted  and  agreed,  or  in  lieu  thereof  the 

1  Russell's  Appeal,  15  Penn.  319.  ^  Rose  v.  Cunyngliamc,  11  Ves.  550. 

2  Broome   v.  Monck,   10  Ves.  597  ;  *  Broome  v.  Alonck,  10  Ves.  597. 
Potter  V.  Potter,  1  Ves.  4.37  ;   Davie  i'.  ^  Darris's  case.  3  Salk.  85. 
Beardsham,  1  Cha.  Cas.  39  ;  Milner  v.  ^  Greenhill  v.  Greenhill,  2  Vern.  679. 
Mills,  Mose.   123;  Capcl  v.  Girdler,  9  ^  Marston  v.  Roe,  8  Ad.  &  EU.  14. 
Ves.  509.  See  Vernon  v.  Vernon,  7  E.  8. 

1* 


6  LAW  OF  VENDORS  AND  PURCHASERS.        [CO.  I. 

money  arising  by  the  sale  of  my  real  estate  in  the  county  of 
L. ;"  (with  directions  for  completing  the  contracts.)  Held, 
the  advowson  shall  pass.^ 

21.  The  same  general  principle  has  been  applied  to  the 
question  of  an  implied  revocation  of  a  will,  by  subsequent 
marriage,  and  birth  of  children.- 

22.  The  same  rule  of  equity  sometimes  involves  the  ques- 
tion, as  to  the  fund,  making  part  of  the  estate  of  the  testator, 
from  which  purchase-money  shall  be  paid. 

23.  Upon  the  principle  above  stated,  the  devisee  or  heir 
of  a  purchaser  may  call  for  application  of  the  personal  estate 
in  payment  for  the  land.-^  But  the  liability  of  real  and 
personal  representatives,  in  respect  of  such  contract,  is  regu- 
lated by  that  of  the  party  at  his  death.  If  he  could  not  be 
compelled  to  take  the  estate,  the  heir  cannot  insist  on  having 
it,  and  that  the  personal  estate  shall  pay  for  it.*  The  admin- 
istrators cannot  assign  the  contract,  or  compel  its  perform- 
ance, without  consent  of  the  heirs.'"* 

24.  A  devisee,  claiming  the  benefit  of  a  contract  for  the 
purchase  of  an  estate,  directed  to  go  to  the  uses  of  the  will, 
the  title  of  which  proves  dtfective,  has  no  claim  upon  the 
personal  estate  ;  either  to  have  the  purchase-money,  or  an- 
other estate  purchased,  or  the  purchase  completed  notwith- 
standing the  defect.^ 

25.  A.  makes  a  lease  to  B.  for  seven  years,  and  on  the 
lease  is  indorsed  an  agreement,  that  if  B.  shall  within  a 
limited  time  be  minded  to  purchase  the  inheritance  for 
X  3,000,  A.  would  convey  to  him  for  that  sum.  B.  assigns 
to  C.  the  lease  and  the  benefit  of  this  agreement.  A.  dies, 
and  by  will  gives  all  his  real  estate  to  D.  and  all  his  per- 
sonal to  E.  and  D.  equally.  Within  the  limited  time,  but 
after  the  death  of  A.,  C.  claims  the  benefit  of  the  agreement 
from  D.,  who  accordingly  conveys  to  C.  for  X3,000.     Held, 

1  St.  John  V.  Bishop,  &c.  2  Bl.  930 ;  *  Broome  v.  Monck,  10  Ves.  597. 

1  Cowp.  94.  ^  Champion  v.  Brown,  6  Johns.  Ch. 

^  Marston  v.  Roe,  8  Ad.  &  Ell.  14.  398. 

^  Broome  v.  Monck,  10  Ves.  597;  *>  Broome  v.  Monck,  10  Ves.  597. 
Milncr  v.  Mills,  Mose,  123. 


CH.  I.]  NATURE    OP    THE    CONTllACT    FOR    A    SALE,    ETC.  7 

this  sum,  when  paid,  is  part  of  the  personal  estate  of  A., 
and  E.  is  entitled  to  one  moiety  of  it  as  such.' 

26.  The  doctrine,  that  a  party  claiming  under  a  will  can- 
not dispute  any  of  its  provisions,  but  must  elect  to  affirm  or 
repudiate  it  in  toto,  has  been  applied  te  the  devise  of  land 
merely  contracted  for. 

27.  Will,  directing  that  in  case  the  testator  shall  enter 
into  contracts  for  the  purchase  of  lands,  and  die  before  the 
conveyance,  such  contracts  shall  be  carried  into  execution, 
the  money  paid  out  of  his  personal  estate,  and  the  convey- 
ance be  to  his  trustees,  their  heirs,  &c.,  to  the  uses  of  his 
will.  Held,  the  heir  at  law,  having  interests  bequeathed  to 
him,  is  put  to  an  election. ^ 

28.  A  similar  doctrine  has  been  applied  to  the  title  of  a 
vendor  of  lands,  as  affected  by  a  devise  thereof.  Thus,  where 
one  devises  land,  and  afterwards  articles,  for  valuable  con- 
sideration, to  sell  or  settle  them,  this  in  equity  is  a  revocation 
of  the  will ;  as  much  so  as  a  conveyance  would  be  at  law. 
Whether  the  abandonment  of  the  contract  would  set  up  the 
will  again,  without  republication,  has  been  questioned.^ 

29.  On  the  other  hand,  if  the  owner  of  an  equitable  fee 
devises  it,  and  afterwards  the  legal  fee  is  conveyed  to  him, 
the  will  is  not  thereby  revoked,  because  such  conveyance 
was  incident  to  the  equitable  fee  devised.  But,  if  he  after- 
wards take  a  qualified  conveyance  of  the  legal  fee,  for  the 
purpose  of  preventing  dower,  it  is  a  revocation,  being  a 
change  in  the  quality  of  the  Estate,  and  not  incident  to  the 
equitable  fee.^ 

30.  If,  after  a  devise  of  all  one's  real  and  personal  estate, 
he  articles  to  purchase  lands,  and  then  dies,  they  pass  to  the 
heir.  Had  the  articles  been  made  before  the  wiU,  the  estate 
would  have  passed  by  it.'^  So,  a  testator  entered  into  a  con- 
tract for  the  purchase  of  an  estate,  and  the  vendor  agreed  to 

1  Lawes  r.  Bennett,  1  Cox,  167.  3  Bennett    v.    Lord   Tankcrvillc,    19 

-  Thellusson   v.  Woodford,  13   Ves.     Ves.  170. 
'209.  *  Ward  v.  Moore,  4  Madd.  368. 

5  Langford  v.  Pitt,  2  l\  VVras.  629. 


8  LAW    OF    VENDORS   ANl)    PURCHASERS.  [cil.  I. 

convey  to  the  purchaser,  his  heirs,  a}5pointees,  or  assigns. 
Subsequently  to  the  contract,  the  purchaser  made  a  codicil, 
by  which,  after  reciting  the  contract,  he  devised  the  estate  to 
his  executors  and  trustees,  upon  ihe  trusts  therein  mentioned. 
He  afterwards  took  a  conveyance  from  the  vendor,  to  the 
usual  uses,  to  bar  dower.  Held,  the  conveyance  operated  as 
a  revocation  of  the  devise.^ 

31.  A  testator  devises  all  his  freehold  and  copyhold  manors, 
&c.,  and  real  estate  whatever,  upon  certain  trusts  ;  and  gives 
to  the  same  trustees  a  sum  of  £35,000  to  lay  out  in  the 
purchase  of  lands,  to  be  settled  upon  the  same  trusts.  He 
afterwards  contracts  for  the  purchase  of  several  estates ;  and 
by  a  codicil,  specifying  some  of  the  estates  which  he  had  so 
contracted  to  purchase,  devises  them  to  the  same  trustees, 
upon  the  trusts  of  his  will,  and  directs  that  the  purchase- 
moneys  shall  be  taken  as  part  of  the  .£35,000 ;  confirming 
his  will  in  all  other  respects.  Held,  the  codicil  amounts  to  a 
republication  of  the  will,  so  as  to  pass,  not  only  the  estates 
therein  specified,  but  all  the  estates  contracted  for.^ 

32.  But,  on  the  other  hand,  it  has  been  held,  that  an  estate 
which  the  testator  had  contracted  to  sell,  will  pass  by  a  de- 
vise of  all  his  real  and  personal  estate  to  trustees,  in  trust  to 
sell.3 

33.  A  testator,  having  devised  freeholds  and  copyholds  to 
the  same  persons,  afterwards  executed  a  marriage  settlement, 
by  which  he  bargained  and  sold  the  freeholds  to  trustees  and 
their  heirs,  to  the  use  of  himself  during  his  life,  and  after  his 
death,  to  the  intent  that  the  wife  might  receive  annually  a 
rent-charge,  which  was  secured  by  powers  of  distress  and 
entry,  and  by  a  term  of  years  ;  and  subject  to  the  rent-charge 
and  the  term,  to  the  use  of  the  settlor,  his  heirs  and  assigns ; 
and  covenanted  to  surrender  the  copyholds  to  the  uses  of  the 
settlement.  The  testator  died,  leaving  his  wife  surviving, 
without  having  surrendered  the  copyholds.     Held,  the  cov- 


1  Bullin  V.  Fletcher,  1  Kee.  3G9.  ^  y^^\\  y.   Bright,   1   Jac.  &  Walk. 

■-  Huhiie  V.  Heygate,  1  Mer.  285.  494. 


CII.  I.]         NATURE    OF   THE   CONTRACT   FOR   A    SALE,   ETC.  9 

enant  to  surrender  did  not  operate  as  an  entire  revocation  of 
the  devise  of  the  copyholds,  but  only  so  far  as  the  particular 
purposes  of  the  settlement  required.^ 

34.  A  testator  devised  all  his  real  estates  to  his  children, 
equally,  and  afterwards  entered  into  contracts  for  a  sale,  but 
died  before  they  were  completed.  The  purchasers  afterwards 
abandoned  their  contracts,  because  they  were  unable  to  pro- 
cure a  conveyance  from  some  of  the  devisees,  who  were 
infants.  Held,  though  the  contracts  were  properly  aban- 
doned, the  will  was  revoked.^ 

35.  Agreement  for  the  sale  of  an  estate  at  a  future  time. 
Before  that  time,  the  vendor  died  intestate.  Held,  the  rents 
accrued  between  the  vendor's  death  and  the  time  fixed  be- 
longed to  his  heirs.3 

36.  A  testator  devised  his  estates  to  trustees,  in  trust  to 
sell,  their  receipts  to  be  sufficient  discharges  ;  and  directed 
them  to  complete  any  contracts  for  sale  remaining  incomplete 
at  his  death.  Held,  his  executor  was  the  proper  party  to 
give  receipts  for  the  purchase-moneys  of  such  estates.* 

37.  So  the  title  of  a  purchaser  passes  by  descent  to  his 
heirs.^ 

38.  Although  a  purchaser,  before  the  conveyance,  has 
neither  a  legal  nor  equitable  right  as  against  the  seller.)  until 
he  pay  the  purchase-money  ;  yet,  upon  the  same  principle  of 
equitable  ownership,  his  equitablfi  estate  is  subject  to  his  con- 
trol, and  to  the  lien  of  judgments  obtained  against  him. 

39.  But  Equity  will  order  an  injunction  against  cutting 
timber,  by  a  person  having  got  possession  under  articles  to 
purchase.^ 

40.  Although,  as  a  general  rule,  a  mere  agreement  of  sale 
and  purchase  is  merged  in  the  actual  conveyance,  yet,  by  a 
well-established  principle  of  Equity  jurisprudence,  the  Court 

1  Vawser  v.  Jeffery,  3  Russ.  479.  ^  Broome  v.  Monck,  10  Ves.  597. 

-  Tebbott  i;.  Voules,  G  Sim.  40.  °  Crockford   v.  Alexander,   15   Ves. 

3  Lumsden  v.  Frascr,  12  Sim.  263.  jun.  138;  Baldwin  v.  Belcher,  1  Jo.  & 

*  Eaton  V.  Sanxter,  6  Sim.  517.  Lat.  18. 


10  I/AW    OF    VENDfiUi?    AND    I'lIRClIASERS.  [CU.  I. 

will  corrrct  a  mistake  (a)  in  a  written  contract,  if  clearly  shown, 
even  by  parol  evidence.  So,  n  fortiori,  the  Court  will  reform 
a  deed,  entered  into  under  a  previous  agreement,  by  ordering 
a  fresh  conveyance  ;  from  which  a  ^covenant  will  be  ex- 
punged which  was  not  contained  in  that  agreement,  or  con- 
templated by  the  covenantor,  even  though  such  covenant 
was  introduced  by  the  ultorney  of  the  covenantor,  (but 
without  his  express  authority.)  ^ 

41.  Tenants  in  common  agreed  to  make  partition  pur- 
suant to  an  award,  and  executed  deeds  for  that  purpose.  In 
the  deed  to  the  plaintiff,  a  tract  assigned  to  him  was  omitted 
by  mistake.  The  parties  took  possession  according  to  their 
deeds.  Held,  the  mistake  should  be  rectified,  and  a  spe- 
cific performance  of  the  contract  decreed  as  to  the  tract 
omitted.'^ 

42.  E.  (carrying  on  business  under  the  name  of  W.  Fac- 
tory,) being  indebted,  proposed  to  his  creditors  in  a  writing, 
signed  by  his  agent,  as  follows :  "  A  deed  of  trust  of  all  the 
property  to  be  executed  for  the  payment  of  such  notes 
already  given  by  said  Factory,"  &c.,  as  may  be  renewed  for 
twelve  months,  payable  afterwai-ds  in  monthly  payments. 
This  proposal  was  accompanied  by  another  paper,  headed. 
State  of  Warren  Factory,  and  included  in  its  recitals,  among 
other  property,  "  Factory  Pratt  Street."  It  was  accepted  by 
some  of  his  creditors,  and"  a  deed  of  trust  executed.  It 
appeared  that  the  Factory  Pratt  Street,  was  situated  on 
two  lots  of  ground,  which  belonged  as  well  to  E.  as  his 
brothers  and  sisters  ;  but  the  deed  of  trust,  in  which  the 
brothers  and  sisters  united,  by  mistake  of  all  parties  omitted 
one  of  those  lots.  Before  the  discovery  of  this  mistake, 
two  creditors  obtained  judgments  at  law,  one  before,  and 
one  after,  the  trustees  took  possession.  Bill  to  reform  the 
deed,  add  the  omitted  lot,  and  enjoin  the  creditors  from  pro- 

1  Rob  V.  Butterwick,  2  Price,  190.  ^  Tilton  i-.  Tilton,  9  N.  Hamp.  385. 

(a)  Sec  Mistake. 


en.  I.]  NATURE    OF    THE    CONTRACT    FOR    A    SALE,    ETC.  11 

ceeding  at  law  against  that  lot.  Held,  that  the  former 
creditor,  not  having  notice  of  the  original  contract,  might 
proceed  at  law;  but  the  other,  having  received  a  dividend 
from  the  trustees,  thereby  became  an  equitable  party  to  the 
deed,  and  could  not  enforce  his  judgment,  in  opposition  to 
the  agreement  on  which  the  deed  was  founded.  Upon  these 
principles,  the  deed  was  decreed  to  be  reformed,  in  con- 
formity with  the  original  contract.^ 

43.  But  Equity  will  not  interpose  to  amend  a  written 
instrument,  without  the  clearest  and  most  satisfactory  proof 
of  the  mistake,  and  of  the  real  agreement,  especially  where 
the  mistake  is  denied  in  the  answer.-  Thus  the  defendant,  in 
WTiting,  agreed  to  convey  to  the  plaintiff,  on  payment  of  a 
certain  sum,  "  a  lot  of  land  situated  in  the  town  of  Wind- 
ham." The  plaintiff,  alleging  that  there  was  a  mistake  in  the 
contract,  and  that  the  whole  of  a  particular  lot  was  intended 
to  be  embraced  by  it,  though  a  part  of  the  lot  lay  in  the  town 
of  Westbrook,  brought  his  bill  to  have  the  mistake  corrected, 
and  specific  performance  decreed  of  the  contract  as  amended. 
Held,  parol  evidence  was  inadmissible  to  vary  the  written 
contract.'^  So,  a  bill  to  rectify  a  conveyance,  alleged  to  have 
passed  by  mistake  more  than  was  included  in  a  previous 
agreement,  was  dismissed ;  the  conveyance  reciting  a  more 
extended  agreement,  the  parties  being  dead,  the  agent  of  the 
grantor  having  acknowledged  the  extended  agreement,  and 
the  agent  of  the  grantee,  who  could  have  given  a  personal 
account  of  the  transaction,  not  having  been  examined  by 
the  plaintiff.^ 

44.  A  marriage  settlement  recited  an  agreement  to  convey 
a  certain  estate,  save  and  except  the  lands  of  Ballyhenry 
and  its  sub-denominations,  but  the  operative  part  of  the  deed 
purported  to  convey  by  name,  as  a  separate  denomination, 
the  lands  of  Killahan,  which,  it  was  proved,  were  reputed  a 
sub-denomination  of  Ballyhenry.     Held,  that  there  was  not 

•    '  Moale  V.  Buchanan,  1 1    Gill.  &  J.  ^  Elder  v.  Elder,  1  Fairf.  80. 

314.  *  Beaumont  v.  Bramlev,  Turn.  &  Russ.  - 

'^  Lyman  v.  United  Ins.  Co.  2  Johns.  41. 
Ch.  630. 


12  LAW    or    VENDORS    AND    in'KCHASERS.  [rji.  I. 

sufficient  evidence  of  mistake  to  justify  the  Court  in  striking 
KiUahan  out  of  the  settlement.^ 

45.  So,  where  a  contract  is  entered  into  for  the  sale  of 
an  estate,  and,  under  general  words,  property  passes  which 
the  vendor  insists  he  did  not  intend  to  sell,  but  the  purchaser 
by  his  answer  denies,  or  docs  not  admit,  that  it  was  not  in 
his  contemplation  at  the  time  of  the  purchase  ;  it  seems,  the 
vendor  cannot  sustain  a  bill  against  the  purchaser,  to  have 
the  contract  rectified  on  the  ground  of  mistake,  and  carried 
into  execution.  And  it  is  even  doubted,  whether,  consistently 
with  the  Statute  of  Frauds,  the  Court  can  entertain  such 
bill,  even  where  the  mistake  is  admitted  by  the  answer.^ 

46.  So,  a  purchaser  cannot  claim  premises  which,  though 
answering  the  general  description  in  the  advertisement  of 
sale,  were  not  in  the  contemplation  of  either  party  at  the 
time  of  the  purchase  or  conveyance  ;  the  purchaser  being 
referred  to  a  more  particular  description,  w^hich  did  not  in- 
clude them ;  and  the  surrender  having  been  made  according 
to  that,  and  from  his  own  instructions.  If  one  party  thought 
he  had  purchased  bond  fide  part  of  an  estate,  which  the  other 
thought  he  liad  not  sold,  it  is  a  ground  to  set  aside  the  con- 
tract. If  both  understood  the  whole  was  to  be  conveyed,  it 
must ;  otherwise,  if  neither  understood  so.-^ 

47.  It  has  been  doubted,  whether  the  Court  would  enter- 
tain a  suit  to  reform  a  mistake,  for  the  discovery  of  matter 
constituting  a  new  case,  after  the  subject  had  been  adjudi- 
cated upon  and  disposed  of  by  a  foreign  tribunal  of  com- 
petent jurisdiction,  when  it  did  not  appear  that  the  new 
matter  might  not  still  be  made  available  before  such  tri- 
bunal.'* 

48.  Parol  evidence  is  not  admissible,  at  law,  to  show  a  mis- 
take in  the  conveyance  of  land  sold,  as  compared  with  the 
agreement  of  sale. 

'Alexander   v.   Crosbie,    1    Lloy.   &  »  Calvcrley  r.  Williams,  1  Ves.  21 1. 

G03.  l-l-''-  *  Marquis  of  Breadalbane  v.  Marquis 

-  Attorney-General  and  Commission-  of  Chandos,  2  Myl.  ^c  Cra.  711. 
crs,  &c.  V.  Siuvell,  1  You.  ^c  Coll.  559. 


CII.  I.]         NATURE   OF  THE   CONTRACT   FOR   A    SALE,   ETC.  .13 

49.  Agreement,  in  writing,  to  sell  and  convey  land,  at  £9 
per  acre.  A  deed  was  accordingly  executed,  expressing  the 
number  of  acres,  and  the  purchase-money  paid  at  that  rate. 
Held,  no  parol  evidence  was  admissible,  of  a  mistake  in  the 
quantity ;  and  that  an  action  did  not  lie  for  money  had  and 
received,  to  recover  back  the  amount  alleged  to  be  overpaid.^ 

'  Howes  V,  Barker,  3  Johns.  50G. 


14 


LAW  OF  VENDORS  AND  PURCHASERS. 


[on.  II. 


CHAPTER    II. 

WHAT  CONSTITUTES  AN  A(JE,BEMENT  FOR  THE  SALE  AND  PUR- 
CHASE OF  LANDS.  DISTINCTION  BETWEEN  A  CONTRACT  AND  A 
MERE   PROPOSAL,    OFFER,    ETC. 


1.  An  offer  does  not  bind,  till  ac- 
cepted. 

2.  Contract  by  correspondence. 


8.  Contract  by  several  connected  pa- 
pers. 


1.  Having  considered  the  distinction  between  an  executory 
sale,  and  an  executed  conveyance,  of  land,  and  the  well- 
settled  qualifications  of  that  distinction  in  Courts  of  Equity, 
another  soniewhat  analogous  difference  requires  to  be  noticed, 
applicable  as  well  to  a  sale  of  land  as  of  other  property; 
to  wit,  that  between  a  completed  bargain,  assented  to  by  both 
parties,  and  a  mere  proposal,  negotiation,  or  treaty.  Upon 
this  point  it  is  held,  that  a  contract  wiU  not  be  specifically 
executed,  unless  upon  a  fair  interpretation  importing  a  con- 
cluded agreement ;  and  not  leaving  it  doubtful  whether  the 
transaction  was  more  than  a  treaty.^  So,  an  offer  of  a  bar- 
gain imposes  no  obligation,  unless  accepted  according  to  its 
terms,  without  qualification,  or  unless  such  qualification  be 
agreed  to.^  So,  where  A.  signs  a  writing,  by  wiiich  he  de- 
clares he  will  sell  to  B.  his  house,  &c.,  at  a  certain  price,  &c. ; 
this  is  a  mere  proposition,  and  not  a  contract.^  So,  where 
a  material  ingredient  in  the  terms  of  a  contract  has  been 
omitted.  Equity,  considering  it  as  only  resting  in  treaty,  will 
not  decree  a  specific  execution.  Thus,  where  a  tenant  in 
possession,  under  an  article  impeached  by  his  landlord,  pro- 
posed to  pay  an  increased  rent ;  a  bill  by  the  landlord  for 


1  Strafford  v.  Boswortb,  2  Ves.  &  B.     225,  228  ;  Holland  v.  Eyre,  2  Sim.  &  St. 
341 ;  Huddleston  v.  Briscoe,  11  Ves.  583.     194.  # 

-  Eliason  v.  Ilenshaw,  4  Wheaton,        ^  Tucker  v.  Woods,  12  Johns.  190. 


CH.  n.]  WHAT   CONSTITUTES    AN   AGREEMENT.  15 

specific  execution  of  the  proposal  was  dismissed ;  the  period, 
when  the  increased  rent  should  commence,  not  being  agreed 
on.^  So,  where  A.  sold  land  to  B.,  and,  on  measurement 
after  the  sale,  it  was  found  that  B.  owned  a  part  of  the  land 
sold,  and  A.  offered,  if  B.  would  not  sue  him,  to  pay  jiim 
back  a  part  of  the  purchase-money,  and  there  was  no  evi- 
dence of  B.'s  accepting  the  offer ;  held,  B.  could  not  recover 
on  A.'s  promise.^  So,  a  proposition  in  writing  to  sell  land, 
at  a  certain  price,  if  taken  within  thirty  days,  is  a  continuing 
offer,  which  may  be  retracted  at  any  time  ;  but  if,  not  being 
retracted,  it  is  accepted  within  the  time,  such  offer  and 
acceptance  constitute  a  valid  contract,  the  specific  perform- 
ance of  which  may  be  enforced  by  a  bill  in  equity .-^ 

2.  But  an  agreement  for  the  sale  of  an  estate,  the  result 
of  a  correspondence  hy  letters,  may  be  good  within  the  Stat- 
ute of  Frauds.^  (See  Statute  of  Frauds.)  Thus,  the  de- 
fendant authorized  one  A.  to  propose  a  sale  of  land  to  the 
plaintiff,  to  be  accepted  within  a  week.  Within  the  time, 
the  plaintiff  by  letter  to  A.  accepted  the  offer,  but  for  some 
time  A.  did  not  inform  the  defendant.  Held,  there  was  a 
binding  contract.^  So  the  defendant,  by  letters,  stated  certain 
terms  on  which  the  plaintiff  might  make  a  road  across  his 
land,  and  he  (the  defendant)  would  convey  the  land  to  him. 
The  plaintiff,  with  the  knowledge  of  the  defendant,  began 
the  work.  Held,  he  thereby  became  bound  ;  that  this  was  a 
valid  consideration  for  the  defendant's  agreement ;  that  the 
defendant  could  not  shut  up  the  road,  after  the  plaintiff  had 
performed  his  part  of  the  contract ;  and  that  he  should  be 
restrained  by  perpetual  injunction  from  obstructing  it ;  but 
without  prejudice  to  any  claim  for  damages  against  the 
plaintiff.6 

3.  On  the  18th  of  April,  1834,  A.,  in  writing,  offered  to  sell 
B.  certain  land,  upon  certain  terms,  and  allowed  three  months 

1  Lord  Ormoncl  v.  Anderson,  2  Ball  *  Huddleston  r.  Briscoe,  11  Vcs.  583. 
&  Beat.  363.  '"  Wright  v.  Bigg,  21  Eng.  Law  &  Eq. 

2  Burns  v.  Allen,  11  Ired.  25.  591. 

3  Bost.  &  M.  Railroad  v.  Bartlett,  3  «  N.  Y.  &c.  v.  Tixley,  19  Barb.  428. 
Cush.  224. 


16  LAW    OF   VENDORS   AND    PURCnASERS.  [CII.  II. 

to  dccido  upon  the  proposition.  On  the  26th  of  June,  B. 
wTote  to  A.J  stating  that  C,  the  father  of  B.,  accepted  the 
proposition,  and  signed  the  letter,  "  B.,  for  his  father,  C." 
On  the  back  of  a  copy  of  this  letter,  on  the  19th  of  July,  A. 
wrote  and  executed  a  covenant  to  convey  the  land  to  B., 
"  in  consideration  of  the  within,"  and  "  when  he  shall  have 
fulfilled  on  his  part  the  conditions  of  the  said  agreement, 
a  copy  whereof  is  hereto  annexed."  This  agreement  was 
delivered  to  B.,  who  made  payments  with  money  advanced 
by  C,  and  took  receipts  as  for  money  paid  by  C  B.  took 
possession  of  and  cultivated  the  land,  C.  residing  with  him 
till  his  death.  C.  died,  and  B.  paid  the  balance  of  the  pur- 
chase-money. The  other  heirs  of  C.  then  filed  their  bill 
against  A.  and  B.,  alleging  that  the  name  of  B.  had  been 
inserted  by  mistake  in  the  contract  of  July  19,  instead  of  that 
of  C,  and  praying  for  a  partition  among  the  heirs  of  C, 
an  account  of  rents  and  profits  against  B.,  &c.  B.,  in  his 
answer,  under  oath,  denied  the  mistake,  and  averred  that  the 
money  advanced  for  the  land  had  been  loaned  to  him  by  C, 
to  secure  the  payment  of  which,  C.  was  to  have  a  lien  upon 
the  land.  Held,  the  averment  in  the  answer,  as  to  the  loan, 
was  new  matter,  and,  being  unsupported  by  proof,  was  not 
evidence ;  that  the  letter  of  June  26  showed  a  purchase  by 
C,  and  could  not  be  explained  by  parol,  no  mistake  being 
pretended ;  that  the  written  instruments  above  named,  as 
well  as  the  parol  testimony,  showed  that  the  name  of  B.  was 
inserted  by  mistake,  in  the  agreement  of  July  19,  instead  of 
that  of  C. ;  and  that  a  decree  was  proper,  ordering  a  partition 
among  the  heirs  of  C,  and  directing  that  B.  should  account 
for  the  rents  and  profits,  bfe  paid  for  the  lasting  improve- 
ments made  by  him,  and  refunded  the  purchase-money  paid 
by  him  since  the  death  of  C,  with  interest,  and  that  A. 
should  convey  to  the  heirs,  according  to  their  respective 
interests.^ 

4.  Where  letters  are  stated  as  the  agreement,  no  testimony 

1  Lynn  v.  Lynn,  5  Gilman,  602. 


CII.  II.]  WHAT   CONSTITUTES   AN   AGREEMENT.  17 

aliunde  is  admissible  ;  otherwise,  where  they  are  stated  as 
evidence  of  the  agreement  only.' 

5.  A  contract,  by  letter,  may  arise,  and  be  specifically 
enforced,  if  the  amount  and  nature  of  the  consideration,  to 
be  paid  on  one  side  and  received  on  the  otherj  may  be  ascer- 
tained, and  a  reasonable  description  is  given  of  the  subject- 
matter.  The  Court  need  not  be  satisfied,  that  the  parties 
actually  meant  the  same  thing,  provided  a  clear  assent  be 
given  to  a  certain  proposition,  arising  de  facto  out  of  the 
terms  of  the  correspondence.^ 

6.  But  Uie  Court  will  not  decree  specific  performance  of 
an  agreement  for  a  lease  by  letters,  where  there  is  no  definite 
term  expressed,  nor  any  reference,  aliunde,  by  which  it  might 
be  ascertained.^ 

7.  The  letters,  from  which  a  contract  arises,  may  be  written 
by  the  agents  of  the  respective  parties.  Thus,  an  agent, 
ordered  to  buy  a  lease  of  a  house  for  a  certain  sum,  and  sign 
an  agreement,  wrote  to  the  agent  of  the  owner,  offering  that 
sum.  The  owner  wrote  across  this  letter,  "  I  agree  to  sell 
my  house  upon  these  terms  ; "  and  thereupon  his  agent  wrote 
to  the  other  ^gent,  "  My  employer  will  take  your  offer," 
"  make  an  appointment  to  meet  to  draw  the  agreements." 
The  next  day,  the  agent  of  the  purchaser  said,  that  his  prin- 
cipal had  bargained  for  another  house.  Held,  the  letters 
constituted  a  contract  to  buy,  and  specific  performance  was 
decreed,  with  costs.^ 

8.  Although  niere  proposals  or  negotiations  are  always 
to  be  distinguished  from  a  binding  contract ;  for  the  purpose 
of  determining  the  existence  and  terms  of  a  contract  of  sale 
and  purchase,  various  writings,  connected  with  and  referring 
to  each  other,  may  be  taken  into  consideration ;  though 
neither  by  itself  would  constitute  a  contract. 

9.  The  defendant,  by  articles,  contracted  to  sell  the  plaintiff" 
400  acres  of  land-,  and  allowance  out  of  two  tracts,  claimed 

'  Birce  v.  Bletcliley,  6  Madcl.  17.  See  ^  Gordon  v.  Trevelyan,  1  Price,  64. 

Iluddleston  v.  Briscoe,  11  Ves.  583.  *  Cowley  v.  Watts,   17  Eng.  Law  & 

-  Kennedy  v.  Lee,  3  Mer.  441.  Eq.  147. 
2* 


18  LAW    OF   VENDORS   AND    PURCHASERS.  [CII.  II. 

by  the  defendant,  on  two  surveys  in  the  names  of  A.  and  B., 
being  the  400  acres  surveyed  on  a  warrant  in  the  name  of 
C,  for  $1,000.  Subsequently,  the  defendant  conveyed  the 
latter  tract,  containing  430  acres  and  ten  perches  and  allow- 
ance, and,  on  the  same  day,  the  plaintiff  covenanted,  that  if 
this  survey  should  include  over  400  acres  and  allowance,  he 
would  pay  $13  per  acre  for  the  excess,  and  the  defendant 
gave  the  plaintiff  a  bond  for  $3  per  acre  for  every  acre 
included  in  the  C.  survey,  which  might  be  recovered  in  two 
pending  actions.  In  these  actions,  52  acres  and  55  perches 
and  allowance  were  recovered  from  the  defendant ;  leaving, 
however,  of  this  survey,  400  acres  and  72  perches.  In  an 
action  on  the  bond ;  held,  the  bond,  covenant,  and  deed  were 
to  be  construed  together,  and,  as  the  plaintiff  held  under  his 
deed  over  400  acres  and  allowance,  the  action  did  not  lie.' 

1  Cummings  v.  Antes,  19  Penn.  287. 


CH.  III.] 


CONSIDERATION. — PRICE. 


19 


CHAPTER   III. 


CONSIDERATION   OF   A    CONTRACT    OF   SALE. — PRICE. 


1.  Necessity  of  a  consideration. 

3.  Inadequacy  of  consideration. 

4.  Illegality  of  consideration. 

5.  Nature  of  consideration. 

6.  Need  not  be  expressed. 

11.  Price;  construction  of  the  agree- 
ment for. 


18.  Sufficiency  of  security  for. 

19.  Mutual  rights  and  duties  of  the 
parties  in  connection  with  the  price. 
Offer  to  perform,  tender  of  deed,  &c. 

47.  To  whom  the  price  shall  be  paid ; 
parties  jom</j/  interested. 


1.  Contracts  for  the  sale  and  purchase  of  lands  must,  in 
general,  like  others,  be  founded  upon  some  valuable  consider- 
ation. This  will  be  briefly  noticed  at  present,  as  one  of  the 
elements  of  the  contract.  We  shall  have  occasion,  hereafter, 
in  another  connection,  to  refer,  more  at  length,  to  the  want, 
inadequacy,  or  failure  of  consideration,  as  one  of  the  circum- 
stances which  render  such  contract  void.  (See  Fraud,  Re- 
scinding.) 

2.  Thus,  upon  a  bill  in  equity  for  specif^  performance 
against  a  vendee  of  land ;  it  appeared  that  a  part  only  of 
the  vendors,  the  plaintiffs,  had  become  bound  to  convey  a 
good  title.  Held,  the  contract  should  not  be  enforced,  for 
want  of  mutuality.^  So,  an  agreement,  whereby  the  pur- 
chaser of  a  plantation  binds  himself  to  transfer  one  half 
thereof  to  his  son-in-law,  as  soon  as  the  latter  shall  pay  for 
one  half  of  the  cost,  either  with  his  own  private  means,  or 
with  one  half  of  the  profits  of  the  plantation  ;  is  void  for 
want  of  mutuality,  and  will  not  be  enforced  by  a  Court  of 
Equity ;  especially  when  the  son-in-law,  fifteen  years  after 
the  agreement,  expresses  his  abandonment  of  all  his  rights 
by  a  written  release,  and  does  not  bring  his  bill  in  equity 


'  Bronson  v.  Cahill,  4  McL.  19, 


20  LAW   OF   VENDORS   AND   PURCHASERS.  [cil.  III. 

until  twenty-seven  years  have  elapsed  from  the  date  of 
the  agreement,  without  any  performance  or  oiler  of  per- 
formance on  his  part.^  So,  a  promise  made  by  one,  who 
enters  public  lands,  to  pay  a  prior  occupant  for  improvements 
made  thereon  by  him,  is  without  consideration  and  void.^ 
So,  there  is  neither  a  legal  nor  moral  obligation,  on  the  owner 
of  land,  to  pay  for  the  work  and  labor  done  upon  it,  by  ont 
who  has  entered  without  his  consent,  or  any  color  of  right, 
and  held  possession  against  him.  Hence,  a  promise  thus  to 
pay  is  without  consideration  and  void."^  So,  a  contract  for 
the  sale  of  land  will  not  be  enforced,  where  it  has  been  lost, 
without  proof  of  the  identity  of  the  land  claimed  and  that 
referred  to,  and  of  the  amount  and  payment  of  the  consid- 
eration.* 

3.  Although  entire  want  of  consideration  avoids  the  contract 
in  question,  it  may  be  stated,  as  the  general  rule,  that  inade- 
quacy of  consideration  is  no  ground  for  resisting  the  execution 
of  a  contract  to  sell,  the  vendor  not  being  under  any  incapac- 
ity or  deficiency  of  judgment,  or  led  by  accident  or  design  into 
a  misapprehension  of  the  value.^  But  execution  is  some- 
times decreed  without  costs.°  In  case  of  apparent  fraud,  or 
if  the  situation  of  the  parties  is  so  unequal,  as  to  give  one 
of  them  an  ^portunity  of  making  his  own  terms ;  equity 
will  not  lend  its  aid  to  execute  the  contract,  but  leave  the 
party  to  his  remedy  at  law.*"  So,  where  the  inadequacy  of 
price,  in  a  contract  to  sell  or  convey,  is  so  great  as  to  be 
conclusive  evidence  of  fraud,  as  where  it  would  shock  the 
moral  sense  of  an  indifferent  man.  Chancery  should  not  carry 
it  into  effect.^ 

4.  Illegality  of  consideration  avoids  the  contract.  Thus, 
where  property  has  been  conveyed,  for  the  purpose  of  pro- 
tecting it  from  the  creditors  of  the  grantor,  no  obligation  to 

1  Dorscy  r. Packwood,  12  IIow.  U.  S.  Worraack  y. Rogers,  9  Geo. GO;  ]\I'Artee 
126.  V.  Engart,   13  111.  242;   Mann  v.  Bet- 

2  McFarland  v.  Mathis,  5  Eng.  560.  terly,  21  Verm.  326. 

3  Frear  v.  Hardenbergh,  5  Johns.  272.         •>  Burrowes  v.  Locke,  10  Ves.  470. 

*  Madeiray.  Hopkins,  12  B.Mon.  595.        ^  Potter  y.  Everitt,  7'Ired.  Eq.   152; 
!»  Western  v.   Russell,  3   Ves.  &  B.     Powers  v.  Hale,  5  Fost.  145. 
187  ;  Burrowes  v.  Locke,  10  Ves.  470  ;        ^  Seymour  v.  Delancey,  3  Cow.  445. 


ClI.  III.  J  CONSIDERATION. — PRICE.  21 

reconvey,  growing  out  of  the  transaction,  or  forming  a  part 
of  it,  can  either  be  itself  enforced,  or  form  the  consideration 
of  an  enforceable  promise  or  covenant,  written  or  parol.' 

5.  The  consideration  need  not  be  a  cash  payment.  Thus, 
a  note  for  the  purchase-money  is  sufficient  consideration  for 
a  bond  to  convey.^  So,  if  a  vendee  of  land  covenant  to 
erect  a  brick  building  thereon  within  a  certain  time,  this  is  a 
valid  consideration  for  the  covenant  to  sell.^  So,  if  the  only 
condition  of  a  bond  for  title  is,  that  titles  shall  be  made  as 
soon  as  a  patent  from  the  government  is  procured ;  the  pre- 
sumption from  its  face  is,  that  the  purchase-money  has  been 
paid  ;  and  it  is  no  notice  to  an  assignee  to  the  contrary ."^ 

6.  It  is  not  necessary  to  constitute  a  valid  consideration 
for  a  contract  to  sell  land,  that  the  purchaser  should  expressly 
stipulate  to  buy  or  pay  for  it. 

7.  Agreement,  that  one  party  will  sell  lands  to  another, 
and  convey  them  on  a  certain  day.  The  purchase-money 
was  paid  down,  the  vendor  agreeing,  at  the  end  of  a  year, 
upon  thirty  days'  notice,  to  refund  it  with  interest.  The 
agreement  being  signed  by  both  parties,  held,  there  was 
sufficient  consideration,  though  the  purchaser  did  not  ex- 
pressly contract  to  do  any  thing  ;  that  the  purchase  and 
payment  were  a  sufficient  consideration  for  the  seller's  en- 
gagement to  convey  or  repay  the  money  ;  that  the  agreement 
was  substantially  an  alternative  one,  either  to  sell  and  pur- 
chase land,  or  to  borrow  and  lend  money,  at  the  election  of 
the  purchaser  at  the  end  of  the  year,  and,  upon  giving 
notice,  he  might  recover  back  the  money;  and  that,  if  he 
should  receive  a  conveyance  before  calling  for  the  money,  he 
could  not  afterwards  recover  the  money,  without  reconveying 
the  land.^ 

8.  The  plaintiff,  by  a  contract  inter  partes,  and  signed  by 
both,  agreed  to  sell  to  the  defendant  his  farm  in  Florence, 
Oneida  County,  for  $1,700  in  cash,  and  240  acres  of  land 

1  Ford  V.  Lewis,  10  B.  Mon.  127.  *  Burns  v.  Taylor,  23  Ala.  255. 

-  Whiteside  v.  Jennings,  19  Ala.  784.         ^  Eno  v.  Woodworth,  4  Comst.  249. 

^  Brewer  v.  Bcssincrer,  25  Miss.  86. 


22  LAW  OF  VENDORS  AND  PURCHASERS.       [CH.  III. 

owned  by  the  defendant,  in  Lake  County,  Illinois,  upon 
certain  terms  and  with  certain  reservations.  A  penalty  of 
$500  was  provided  for  breach  of  the  contract.  On  the  day 
appointed,  the  plaintiff  tendered  a  deed,  and  demanded  the 
money  and  a  conveyance  of  the  land,  but  the  defendant  did 
not  thus  pay  or  convey,  although  the  plaintiff  was  ready 
to  perform  on  his  part.  Held,  in  an  action  for  the  price, 
and  also  for  specific  performance,  that  although  the  defend- 
ant did  not  expressly  agree  to  buy  or  pay  for  the  farm, 
such  agreement  was  to  be  implied  ;  that  the  measure  of 
damages  was  the  price  to  be  paid  ;  that  the  $500  was  not 
designed  as  stipulated  damages,  but  as  a  penalty  to  enforce 
performance,  and  therefore  was  no  bar  to  this  suit;  and 
that  the  contract  was  sufficiently  definite  to  be  specifically 
enforced.^ 

9.  A  bond  was  made,  in  Alabama,  by  one  member  of  a 
firm  to  another,  expressing  no  consideration,  and  conditioned 
to  give  a  quitclaim  deed  of  certain  land  in  two  years.  The 
same  day,  the  parties  entered  into  an  agreement,  by  which 
the  obligee  covenanted  to  use  his  best  endeavors  for  two 
years  to  collect  the  partnership  debts,  and  pay  their  liabilities. 
Held,  a  consideration  for  the  bond  was  implied,  and,  as 
neither  instrument  referred  to  the  other,  and  the  two  related 
to  different  subjects,  they  could  not  be  treated  as  parts  of 
one  transaction,  nor  the  covenant  of  the  obligee  treated  as 
the  consideration  of  the  bond.^ 

10.  A  declaration  alleged  a  written  agreement,  that  the 
plaintiff  would  let,  and  one  A.  would  take,  a  house,  at  an 
annual  rent,  and  that  the  defendant  thereby  agreed  to  see 
the  rent  paid  by  A.  or  pay  it  for  him ;  that  the  plaintiff 
let  the  house,  and  A.  became  tenant,  on  the  terms  of  the 
agreement ;  and  that  neither  A.  nor  the  defendant  paid  the 
rent.  Held,  on  demurrer,  the  consideration  for  defendant's 
promise  was  the  letting  of  the  house,  and  this  sufficiently 
appeared  in  the  agreement.^ 

1  Eichards  v.  Edick,  17  Barb,  260,  ^  Caballero  v.  Slater,  25  Eng.  Law  & 

2  Holman  v.  Crane,  16  Ala.  570.  Eq.  285. 


CH.  III.]  CONSIDERATION. — PRICE.  23 

11.  In  this  connection,  may  be  considered  the  subject  of  a 
purchaser's  liability  to  pay  the  agreed  price,  and  the  defences 
sometimes  made  against  actions  therefor,  (a) 

12.  The  terms  of  the  contract  may  be  such  as  to  render 
this  liability  alternative  or  contingent ;  or,  as  in  the  following 
case,  to  give  a  right  of  election  to  the  vendor  alone,  not  to 
the  vendee,  {b)     Thus,  a  purchaser  of  land  paid  part  of  the 


(a)  The  question  sometimes  arises,  whether  the  sum  stipulated  to  be  paid 
by  a  purchaser  is  to  be  viewed  as  a  penalty  for  violation  of  the  contract, 
or  as  part  of  the  price,  or  as  liquidated  damages.  Thus,  where  a  purchaser 
covenanted,  in  consideration  of  having  the  property  conveyed  to  him  for  a 
certain  sum,  that  he  would,  by  a  certain  day,  erect  two  brick  houses  of 
specified  dimensions,  or,  in  default  thereof,  pay  to  the  grantor,  on  demand, 
the  sum  of  $4,000;  held,  the  sum  specified  was  not  a  penalty,  but  part  of 
the  price ;  and,  on  failure  to  erect  the  houses,  the  covenantee  was  entitled 
to  recover  it  as  liquidated  damages,  not  merely  the  actual  damages  sustained. 
Pearson  v.  Williams,  26  Wendell,  630. 

So,  where  A.,  in  consideration  of  $500,  paid  in  full,  for  fifty  acres  of  land, 
covenanted  to  convey  the  land  to  B.  by  a  good  and  sufficient  deed,  on  or 
before  a  certain  day,  or,  in  lieu  thereof,  to  pay  him  $800  ;  held,  B.  was 
entitled  to  recover  that  sum  on  a  breach  of  the  covenant,  with  interest ;  the 
same  being  in  the  nature  of  liquidated  damages,  and  not  a  penalty.  Slosson 
V.  Beadle,  7  Johns.  72. 

But  a  purchaser  of  land,  who  has  contracted  to  pay  a  specific  sum  as  the 
price,  cannot  be  relieved  from  the  payment  by  the  tender  of  a  less  sum, 
also  agreed  upon  in  the  contract  as  stipulated  damages,  to  be  paid  in  case  of 
non-performance  on  his  part.     Ayres  v.  Pease,  12  Wendell,  393. 

(b)  The  price  to  be  paid  is  sometimes  left  to  arbitration.  But  specific 
performance  cannot  be  decreed,  of  an  agreement  to  sell  at  a  price  to  be 
fixed  by  arbitrators  (already  appointed  to  settle  other  matters  in  dispute 
between  the.  parties) ;  where  the  defendant  (the  vendor)  had  refused  to 
execute  the  arbitration  boud,  and  it  was  therefore  uncertain  that  any  award 
would  ever  be  made.     Wilks  v.  Davis,  3  Mer.  507. 

Nor  of  an  agreement  to  sell,  at  a  price  to  be  settled  by  arbitrators  named 
by  the  parties,  if  no  award  has  been  made.  But,  if  the  parties  are  agreed 
as  to  a  valuation,  but  have  not  appointed  any  persons  to  make  it,  the  Court 
will  itself  interfere,  so  as  to  ascertain  the  value,  and  direct  specific  perform- 
ance.    Daly  V.  Duggan,  1  Ir.  Eq.  Rep.  311. 

The   Court  will  not  entertain  a  bill,  for  specific  performance  of  an 


24  LAW  OF  VENDORS  AND  PURCHASERS.       [CH.  II. 

price,  and  gave  notes  for  the  balance,  payable  respectively  in 
one,  two,  three,  and  four  years,  the  vendor  agreeing,  upon  pay- 
ment of  the  notes  as  they  should  fall  due,  to  convey  the  land. 
But,  if  the  purchaser  should  refuse  or  neglect,  upon  request, 
to  pay  either  of  the  notes  at  maturity,  the  obligation  to 
convey  should  become  void,  and  all  previous  payments  be 
retained  as  liquidated  damages  for  breach  of  the  contract. 
Held,  the  stipulation  last-named  did  not  excuse  the  purchaser 
from  payment  of  the  notes,  if  claimed  by  the  vendor.^ 

13.  So  the  contract  tnay  be  such,  as  to  give  the  vendee  a 
similar  election.  Thus,  on  the  purchase  of  certain  real  estate, 
part  of  the  purchase-money  was  paid,  and  promissory  notes, 
payable  at  specified  times  with  interest,  were  given  for  the 
residue.  The  vendor  gave  the  vendee  a  title  bond,  the  con- 
dition of  which  stated,  that  it  was  agreed  between  the  par- 
ties, that  if  said  notes  and  interest  were  not  paid  at  maturity, 

'  Cartwright  v.  Gardner,  5  Cush.  273. 


agreement  to  refer  to  arbitration,  nor  substitute  the  master  for  the  arbitra- 
tors.    Agar  I'.  Macklew,  2  Sim.  &  Stu.  418. 

But  where  there  is  a  contract  to  sell  at  a  valuation  by  persons  named,  the 
Court  will  compel  the  vendor  to  permit  the  valuation.  Motse  v.  Merest,  6 
Madd.  26. 

The  time  of  valuation  is  of  the  essence  of  the  contract ;  but  the  defend- 
ant (vendor)  cannot  take  advantage  of  it,  if  he  improperly  occasion  the  delay. 
Morse  v.  Merest,  6  Madd.  26. 

Where,  in  an  agreement  for  the  sale  of  land,  it  is  stipulated  that  the 
price  shall  be  fixed  by  an  arbitrator,  and  the  agreement  be  made  a  rule  of 
Court ;  the  award  being  published,  and  the  agreement  made  a  rule  of  court, 
the  vendor  cannot  have  an  attachment  for  the  price.  His  only  remedy  is 
by  action  on  the  articles.     In  re  Lee  and  Hemingway,  3  Nev.  &  Man.  860. 

Contract  for  sale,  at  a  price  to  be  fixed  by  arbitrators  within  a  certain 
time,  or,  if  they  should  not  agree  to  make  their  award  within  the  time,  by 
■  an  umpire,  also  within  a  limited  time.  Held,  as  the  contract  required 
-delivery  of  the  award  in  writing  to  each  party ;  though  the  con.-equential 
acts,  execution  of  conveyances,  &c.,  might  be  done  by  representatives ;  the 
contract,  in  reference  to  the  terms  to  be  fixed  by  the  award,  was  personal 
to  the  parties  ;  and,  one  of  them  having  died  before  the  award,  specific  per- 
formance was  refused.     Blundell  v.  Brettargh,  17  Ves.  232. 


CH.  III.]  CONSIDERATION. — PRICE.  25 

the  bond  should  be  void,  and  the  money  paid,  forfeited  to 
the  vendor ;  or  if,  on  payment,  as  aforesaid,  the  vendor  or  his 
assigns  should  make  a  warranty  deed  in  fee  simple  to  the 
vendee  or  his  assigns,  then  the  bond  to  be  void.  Held,  the 
vendee  was  not  bound  to  pay  the  notes,  but  might  abandon 
the  contract,  and  forfeit  the  money  paid.^ 

14.  It  has  been  held,  that  parol  evidence  is  admissible, 
that  an  additional  sum  was  to  be  paid  for  land  conveyed, 
upon  a  certain  contingency,  which  has  occurred.^ 

15.  A  contract  to  purchase  a  certain  tract  of  land  described 
by  boundaries,  supposed  to  contain  242  acres,  at  so  much 
per  acre,  is  not  a  contract  to  pay  for  242  acres  at  that  rate ; 
but  for  so  many  acres  as  there  may  be  in  the  tract.^ 

16.  Where,  by  the  terms  of  a  contract,  dated  December 
24,  for  the  sale  and  purchase  of  land,  the  payments  were  to 
be  made  as  follows :  "  $100  on  the  date  hereof,  $100  by  the 
1st  of  May  next,  and  the  residue  to  be  paid  in  annual  pay- 
ments of  $100  each,  with  interest  on  the  whole  sums  unpaid 
from  the  date  hereof; "  held,  the  "  residue  "  was  payable  in 
annual  payments  computed  from  the  1st  of  May,  and  not 
from  the  date  of  the  contract.^ 

17.  The  plaintiff  sold  land  to  A.  by  written  agreement, 
and  A.  assigned  his  interest  to  the  defendant,  who  took  pos- 
session. The  plaintiff  and  defendant  subsequently  executed 
an  agreement,  settling  all  disputes  about  quantity  and  bound- 
aries, the  plaintiff  to  pay  $20,  and  the  agreement  not  to 
affect  claims  between  the  plaintiff  and  defendant,  or  A.  and 
the  defendant.  Li  this  action  for  the  balance  of  the  price 
the  defendant  sets  up  the  latter  agreement.  The  plaintiff 
then  offered  parol  evidence,  which  was  admitted,  that  the 
agreement  was  not  intended  to  release'the  purchase-money. 
Held,  such  was  not  its  legal  effect,  and  therefore  the  admis- 
sion of  the  parol  evidence  was  no  ground  for  reversing  the 
judgment.^ 

'  Peterson  v.  Dickey,  8  Blackf.  427.  ^  Ayres  v.  Hayes,  13  Mis.  2.52. 

-  Nickerson   v.  Saunders,  36  Maine,         *  Judd  v.  Ensign,  6  Barb.  258. 
413.  5  McMalian  v.  Davis,  19  Penn.  354. 


26  LAW    OF   VENDORS    AND    PURCnASERS.  [Cll.  III. 

18.  Where  the  price  of  land  is  to  bo  paid  otherwise  than 
in  money,  questions  may  arise  as  to  the  respective  rights  and 
duties  of  the  parties,  in  regard  to  the  sufficiency  of  the  pro- 
posed security.  Thus,  it  is  held,  that  a  vendor  is  not  bound 
to  receive  indorsed  notes,  unless  they  are  not  only  good,  but 
there  is  no  reasonable  cause  to  reject  them.  Declaration,  that 
by  the  contract  the  purchaser  was  to  execute  his  notes  for 
the  purchase-money,  with  approved  securities.  Plea,  "  that 
the  securities  offered  by  the  defendant  were  good  and  suf- 
ficient to  secure  the  purchase-money  of  said  lands."  Held 
bad,  on  demurrer,  as  it  did  not  also  aver,  "  that  there  was  no 
reasonable  cause  for  rejecting  them."  ^ 

.  19.  In  this  connection  may  be  considered  the  important 
questions,  as  to  the  liability  of  the  respective  parties,  with 
reference  to  the  price,  so  far  as  that  of  each  depends  upon 
a  performance  by  the  other. 

20.  In  general,  the  plaintiff,  who  seeks  for  the  specific 
performance  of  an  agreement,  must  show  that  he  has  per- 
formed, or  offered  to  perform,  on  his  part,  the  acts  which 
formed  the  consideration  of  the  alleged  undertaking  on  the 
part  of  the  defendant.^  Thus,  a  vendor  is  not  bound  to 
convey,  or  part  with  his  title,  until  the  purchase-money  is 
paid.'^  So,  if  by  agreement,  the  making  of  the  title  and 
payment  of  the  purchase-money  are  to  be  concurrent  acts, 
neither  party  can  sustain  a  suit  on  the  agreement,  without 
having  first  performed  or  offered  to  perform  his  part  of  it.^ 
So,  where  a  vendor  has  no  title,  the  contract  is  a  nullity,  and 
the  vendee  may  recover  back  the  purchase-money  .paid.^ 
So,  upon  a  bond  to  convey,  on  payment  of  the  purchase- 
money,  no  action  lies  at  law  or  in  equity,  without  payment 
or  tender  thereof.^ 

21.  But,  upon  tendering  a  deed,  and  offering  to  perform 


'  Adams  v.  McMillan,  7  Port.  73.  Eq.  573;  Tucker  v.  Woods,   12  Johns. 

'^  Colson  V.  Thompson,  2  Wheaton,  190. 
336,  341.  *  Shirley  v.  Shirley,  7  Blackf.  452. 

'i  Ishmael    v.   Parker,    13   111.   324  ;        ^  Pipkin  v.  James,  1  Humph.  325. 
Manley  v.  Cremonini,  11  Eng.  Law  &        ^  Browning  t".  Clymer,  1  Cart.  579. 


CII.  III.]  CONSIDERATION. — PRICE.  27 

his  agreement,  the  vendor  may  recover  the  purchase-money 
at  law.' 

22.  Sale  of  a  tract  of  land,  containing  181  acres,  at  $45 
per  acre,  with  an  agreement  to  deduct  the  price  of  such  part 
of  which  peaceable  possession  could  not  be  given.  Subse- 
quently, a  deed  was  given,  without  covenants,  describing 
the  land  by  metes  and  bounds,  and  as  containing  181  acres, 
more  or  less,  and  possession  taken.  Held,  the  vendee  was 
bound  for  the  whole  price,  though  he  should  give  up  part  of 
the  land.2 

23.  Unsealed  agreement,  by  which  A.,  in  consideration  of 
$75  paid  by  B.,  and  $15  to  be  paid  by  C,  engaged  to  con- 
vey certain  land  on  a  certain  day  to  B.  C.  not  having  paid 
the  $15,  held,  A.  was  not  bound  to  convey.^ 

24.  Land  was  sold  at  auction  to  the  defendant,  who  sub- 
scribed the  terms  of  sale  ;  which  were,  that  a  certain  part  of 
the  purchase-money  should  be  paid  within  seventy-five  hours  ; 
that  a  deed  should  be  given  by  the  vendor,  with  warranty  of 
title  except  as  to  the  quit  rents  in  such  lots  as  should  be  desig- 
nated ;  that  the  purchaser  should  execute  a  bond  and  mort- 
gage for  the  residue  of  the  pm"chase-money  ;  and  that  the 
deed,  bond,  and  mortgage,  should  bear  date  on  the  day  of 
the  sale.  At  the  time  of  sale  the  premises  were  mortgaged, 
and  the  mortgage  had  been  previously  registered,  and  was 
still  unsatisfied.  In  an  action  of  assumpsit  by  the  vendor, 
against  the  purchaser,  it  was  held,  that  giving  the  deed,  bond 
and  mortgage  were  to  be  simultaneous  acts ;  that,  as  the 
plaintiff  was  not  in  a  situation  to  convey  a  title,  the  defend- 
ant was  not  bound  to  perform  the  agreement  on  his  part ; 
that  the  meaning  of  the  agreement  was  not  merely  that  the 
plaintiff  should  give  a  deed  with  warranty,  but  that  he  was 
able  to  convey  an  indefeasible  title ;  and  that  although  the 
mortgage  was  registered,  and  the  defendant  therefore  had 
notice  of  it,  yet  that  circumstance  was  immaterial ;  for,  by 

1  Richards  v.  EJick,  17  Barb.  260.  3  Oilman  v.  Schwartz,  36  Maine,  541. 

2  Smith  V.  Chaney,  4  Md.  Ch.  246. 


28  LAW   OF  VENDORS   AND   PURCHASERS.  [CII.  III. 

the  terms  of  sale,  the  quit-rents  were  the  only  incumbrance 
on  the  land.  Held,  also,  that  if  the  vendee  has,  according  to 
the  terms  of  the  sale,  paid  part  of  the  consideration-money, 
and  the  vendor  i^  unable  to  convey  a  good  title,  the  vendee 
may  disaffirm  the  contract,  and  recover  back  the  money.^ 

25.  In  August,  1846,  a  father  executed  a  bond  to  his  son, 
to  convey  to  him  certain  real  and  personal  property,  provided 
the  son,  living  in  another  State,  should  return  with  his  family 
in  the  spring  or  summer  of  1847,  purposely  to  provide  for 
and  maintain  for  life  the  father,  his  wife  and  daughter,  and 
give  bond  therefor,  and  to  pay  the  father's  debts.  The  son 
did  not  return  in  1847,  and,  in  the  fall  of  that  year,  the  father, 
standing  in  need,  conveyed  all  his  property  to  the  plaintiffs, 
they  giving  bond  to  provide  for  him  and  his  family,  while 
i^ey  should  live  alone.  The  plaintiffs  had  notice  of  the 
bond  to  the  son,  and  it  was  understood  that  the  property 
was  to  be  surrendered  to  him  on  his  return.  In  the  fall  of 
1849,  the  son  returned  with  his  family,  and,  early  in  1850,  the 
father  notified  the  plaintiffs,  offered  to  surrender  their  bond, 
and  demanded  a  transfer  to  the  son.  Two  days  after,  the 
son  executed  the  bond  agi-eed  upon,  and  the  father  conveyed 
the  land  to  him.  He  entered,  and  the  plaintiffs  bring  eject- 
ment. Held,  the  plaintiffs  had  acquired  the  legal  title,  and, 
in  order  to  obtain  it,  the  son  must  show  a  compliance  with 
his  bond  ;  that,  if  the  plaintiffs  had  performed  its  conditions, 
in  whole  or  in  part,  for  him,  on  the  faith  of  their  title,  they 
were  not  bound  to  convey,  till  he  compensated  them  ;  not 
including,  however,  any  advances  on  accounts,  except  those 
made  on  the  strength  of  the  title.^ 

26.  In  a  contract  for  the  sale  of  lands,  it  was  agreed  that 
the  vendor  should  redeem  a  part  which  had  been  sold  for 
taxes ;  that,  if  the  vendee  should  redeem,  the  sum  paid  by 
him  should  be  allowed  on  the  contract ;  and  that,  if  the  land 
could  not  be  redeemed,  a  deduction  should  be  made  from 
the  contract.     Held,  this  covenant  was  for  the  benefit  of  the 

1  Judson  V.  Wass,  11  Johns.  525.  2  Adams  v.  Smith,  19  Pcnn.  182. 


CH.  III.]  CONSIDERATION. — PRICE.  29 

vendee,  for  the  purpose  of  removing  an  incumbrance,  and 
looked  solely  to  the  title  which  he  was  to  receive ;  that  the 
vendor  was  bound  to  redeem,  and,  the  title  having  been  lost 
by  his  neglect,  the  purchaser  was  not  bound  to  pay  for  that 
part  of  the  land,  nor  to  take  a  deed  including  it.  Also,  that 
the  vendee,  having  voluntarily  paid  the  purchase-money  for 
the  whole  of  the  land,  and  demanded  and  received  a  deed 
for  the  whole,  could  not  maintain  an  action  upon  the  con- 
tract, to  recover  the  value  of  the  part  sold  for  taxes,  his  only 
remedy  being  upon  the  covenants  in  his  deed.^ 

27.  Although,  in  general,  the  purchaser  shall  not  recover 
possession,  till  he  has  paid  or  tendered  the  purchase-money  ; 
it  has  been  questioned,  whether  this  must  be  done  previous 
to  the  commencement  of  an  action.  And  it  is  not  requi- 
site, if  the  vendor  be  the  executor  of  the  vendee,  and  retain 
effects  equivalent  to  the  purchase-money.^  So,  the  above 
rule  may  be  qualified  by  the  special  terms  of  the  agreement. 
Thus  a  bond  for  title  was  given,  reciting,  that  in  considera- 
tion of  a  certain  sum,  secured  by  note,  payable  in  twelve 
months,  the  obligor  had  sold  certain  land  ;  and  conditioned 
to  give  a  good  warranty  title-deed  "when  the  purchase- 
money  should  be  paid,  or  when  a  patent  for  the  land  should 
be  obtainedJikOm  the  government."  In  an  action  upon  the 
note,  held,  a  conveyance  was  not  a  condition  precedent  to 
payment  of  the  price.^  So,  although  where  the  complainant, 
who  seeks  specific  performance  of  an  agreement  for  the  sale 
of  land,  has  not  performed  his  part  of  the  contract,  the  Court 
will  not  decree  specific  performance,  especially  if  any  injury 
has  thereby  resulted  to  the  defendant ;  yet,  the  defendant 
having  taken  possession,  paid  part  of  the  purchase-money, 
and  executed  the  agreement  in  part,  the  Court  will  consider 
him  as  having  waived  his  objections,  and  will  decree  execu- 
tion. It  will,  however,  extend  the  time  of  payment,  vary 
the  security  to  be  given,  and  regulate  the  payment  of  in- 

1  Bull  V.  Willard,  9  Barb.  641.  ^  perry  v.  Rice,  10  Tex.  367. 

2  Smith  V.  Patton,  1  Serg.  &  R.  80. 

^  3* 


30  LAW    OF   VENDORS   AND   PURCHASERS.  [CII,  III. 

terest,  according  to  the  justice  of  the  case,  under  the  cgrcum- 
stances.^ 

28.  The  defendant  covenanted  to  convey  to  the  plaintiff, 
on  condition  that  the  plaintiff  paid  him  $500  by  instalments. 
The  plaintiff  entered,  and  paid  the  first,  and  offered  to  pay 
the  second  if  the  defendant  would  give  him  security  against 
a  mortgage  on  the  premises,  existing  at  the  time  of  the 
purchase.  The  defendant  refused  the  security,  but  offered 
to  receive  the  money,  and  perform  the  contract.  The  plaintiff 
refused  to  pay  any  more  money,  and  the  defendant  brought 
an  ejectment,  and  ejected  him.  The  plaintiff  then  brought 
this  action  to  recover  back  the  money.  Held,  the  plaintiff 
had  no  right  to  rescind  and  recover  back  the  money,  there 
being  no  fraud  on  the  part  of  defendant,  and  the  plaintiff 
not  having  entitled  himself  to  demand  a  deed.^ 

29.  An  agreement  between  A.  and  B.,  that  B.  shall  pay  A. 
a  sum  of  money  for  his  land  on  a  particular  day,  amounts 
to  a  covenant  by  A.  to  convey ;  the  term  agreed  being  the 
word  of  both  parties ;  but  it  is  an  independent  covenant, 
and  A.  may  bring  an  action  for  the  money  before  any  con- 
veyance.-^ So,  where  the  agreement  is,  to  convey  in  fee 
simple,  a  judgment  against   the  vendor  will  not,   at   law, 

3^C 

30.  Marriage  articles  recited  that  A.,  the  father  of  the  in- 
tended husband,  had  agreed,  in  case  the  marriage  should 
take  effect,  to  pay  £200,  and  also  to  settle  the  lands  of  T.,  as 
thereinafter  mentioned ;  and  that  B.,  the  father  of  the  intended 
wife,  who  was  an  infant,  had  agreed  to  convey  the  lands  of 
G.,  as  thereinafter  mentioned,  and  also  to  pay  to  the  husband 
£100  upon  the  marriage.  It  was  then  covenanted  by  A., 
that,  in  case  the  marriage  should  take  effect,  and  B.  should, 
as  soon  as  the  intended  wife  came  of  age,  settle  the  lands  of 
G.  to  the  uses  thereinafter  expressed,  he.  A.,  would  settle  the 

'  Ramsay  v.  Brailsford,  2  Desaus.  583.        ^  Pordage  v.  Cole,  1  Saunders,  320. 
--    "  Ellis  V.  Hoskins,  14  Johns.  363.  *  Fuller  v.  Hubbard,  6  Conn.  13. 


authorize  the  vendee  to  rescind ;  inasmuch  as^conveyance 
without  covenants  would  satisfy  such  an  agre^nSnt.'^ 


en.  in.]  CONSIDERATION. — PRICE.  31 

lands  of  T.  to  his  own  use  until  the  marriage,  and  from  and 
after  the  marriage  to  his  own  use  for  life,  with  remainder 
upon  certain  trusts  for  the  benefit  of  the  husband  and  wife, 
and  the  issue  of  the  marriage  ;  and  it  was  covenanted  by  B. 
that  in  case  the  marriage  should  take  effect,  and  A.  should 
perform  his  covenant,  he,  B.,  would  settle  the  lands  of  G.  to 
the  use  of  himself  for  life,  with  remainder  upon  certain 
trusts  for  the  benefit  of  the  husband  and  wife,  and  issue  of 
the  marriage.  The  marriage  took  effect,  and  the  wife  came 
of  age,  but  B.  failed  to  settle  the  lands  of  G.  Held,  never- 
theless, that  A.  was  bound  to  perform  the  covenant  on  his 
part.' 

31.  A.  sold  to  B.  his  equitable  estate  in  one  fourth  of 
certain  premises,  subject  to  a  mortgage  of  $1,500,  and 
authorized  and  requested  the  trustee  to  convey  the  same  to 
B.  B.  agreed  to  assume  the  payment  of  one  fourth  of  the 
mortgage,  to  save  A.  harmless  therefrom,  and  to  pay  him  the 
sum  of  $625.  It  turned  out  that  there  was  a  mortgage  of 
$1,600.  Held,  the  agreement  was  an  executed  one,  and 
nothing  further  was  necessary  to  be  done  by  the  vendor,  to 
enable  him  to  sue  for  the  sum  so  agreed  to  be  paid ;  that,  no 
time  being  limited,  said  sum  was  payable  immediately,  with 
interest  from  the  date  of  the  instrument ;  and  that  the  vari- 
ance in  the  amount  of  the  mortgage  did  not  avoid  the 
contract.2 

32.  Bond  for  a  quitclaim  deed  of  land  on  a  certain  day, 
on  payment  of  a  certain  price.  At  the  day,  the  obligee 
offered  to  pay  the  money,  having  it  within  his  reach  and 
control,  though  not  actually  in  hand,  but  made  no  tender. 
The  obligor  insisted  that  the  money  should  be  paid  before 
giving  the  deed,  and  refused  to  convey  simultaneously  with 
the  payment.  Held,  the  obligee  was  entitled  in  equity  to  a 
decree  for  a  quitclaim  deed  free  from  incumbrances,  created 
by  the  obligor  since  the  date  of  the  bond.^ 

1  Lloyd  V.  Lloyd,  2  Myl.  &  Cia.  192.        s  parker  v.  Perkins,  8  Cush.  318. 

2  Rogers  v.  Colt,  1  New  Jersey,  18. 


32  LAW    OF   VENDORS    AND    PURCHASERS.  [CII.  III. 

33.  Upon  the  question,  what  constitutes  a  performance  by 
one  party,  enabling  him  to  enforce  an  execution  by  the  other; 
the  general  principle  is,  that  it  must  be  a  subslantial  compli- 
ance with  the  contract,  as  reasonably  construed  with  refer- 
ence to  the  rights  and  interests  of  both  parties.  Thus,  where 
one  of  the  considerations  of  an  agreement  to  convey  land 
was,  that  the  purchaser  should  reside  thereon,  and  he  did 
reside  thereon  two  years,  and  then  left ;  held,  this  was  a 
sufficient  performance  on  his  part.^  So,  an  agreement  for 
the  conveyance  of  land  provided,  that  the  purchaser,  in 
addition  to  the  purchase-money,  should  first  clear  the  land 
of  stones,  "  at  the  rate  of  at  least  three  acres  by  the  year, 
until  the  whole  lot  is  cleared,"  "  and  haul  the  stones  into 
heaps,  or  near  the  road  in  places  easy  of  access,"  to  be  taken 
away  by  the  grantor.  Held,  the  purchaser  was  not  bound 
to  clear  the  three  acres  in  one  parcel,  but  might  clear  to  that 
amount  in  several  parcels.^  So,  the  defendant  promised  to 
pay  the  plaintift"  £5,  if  he  would  provide  a  tenant  for  cer- 
tain premises,  and  get  him  £350  for  his  lease.  The  plaintiff 
procured  a  tenant,  with  whom  the  defendant  entered  into  an 
agreement,  and  received  X50  as  a  deposit.  The  tenant 
being  unable  to  complete  his  engagement,  the  defendant 
afterwards  released  him,  but  retained  the  .£50.  Held,  this 
was  a  substantial  performance  of  the  condition  on  the  part 
of  the  plaintiff,  and  he  was  entitled  to  recover  the  £5  from 
the  defendant.^ 

34.  Conveyance  of  land,  the  grantee  paying  the  consid- 
eration therefor,  and  also  agreeing  in  writing,  "for  value 
received,  to  pay  the  grantor  or  order  ^100,  when  the  grantor's 
wife  shall  sign  the  deed ;  if  she  does  not  sign  it,  the  note  to 
be  null  and  void."  The  wife,  having  a  right  of  dower,  died 
without  signing.  Held,  the  grantor  could  not  recover  the 
$100,  either  as  part  of  the  price,  or  upon  the  written  agree- 
ment.^ 


1  Shaw  V.  Livermore,  2  Greene,  338.         ^  Horford  v.  Wilson,  1  Taunton,  12. 

2  Farwell  v.  Rogers,  4  Gush.  460.  *  Pendergast  v.  Meserve,  2  Fost.  109. 


CH.  III.]  CONSIDERATION. — PRICE.  33 

35.  Written  agreement,  that  the  defendant  would  sell  a 
lot  of  land  at  a  certain  price,  and  advance  to  the  purchaser 
a  certain  sum  towards  building  a  house  of  a  certain  value, 
which  the  latter  agreed  to  build.  The  purchaser  drew  an 
order  on  the  defendant  in  favor  of  the  plaintiff,  payable 
when  the  drawer  should  have  fulfilled  his  contract,  and  re- 
questing the  defendant  to  charge  the  amount  thereof  as  part 
of  the  sums  to  be  advanced.  The  defendant  accepted  the 
order,  provided  the  drawer  should  perform  his  part  of  the 
agreement,  not  otherwise.  The  drawer  built  a  house,  of  less 
value  than  was  agreed.  In  an  action  on  the  acceptance, 
the  plaintiff  offered  evidence  of  a  waiver  by  the  defendant 
of  the  condition  of  the  contract  and  acceptance.  To  show 
the  value  of  the  house,  the  defendant  produced  receipts  from 
the  drawer,  and  other  orders  paid  by  the  defendant,  amount- 
ing to  more  than  the  agreed  advances.  Held,  the  jury  were 
rightly  instructed,  that  the  action  might  be  maintained,  if  the 
defendant  had  waived  the  condition  of  the  contract,  as  to 
the  value  of  the  house  ;  not  otherwise.^ 

36.  On  a  sale  of  land,  the  purchaser  paid  part  of  the  price, 
and  gave  notes  for  the  balance,  taking  a  bond  for  title  "  on 
the  punctual  payment  of  the  notes ; "  took  possession,  but 
failed  to  pay  the  notes,  and  the  vendor  resold  the  land. 
Held,  a  mutual  and  dependent  contract,  requmng  perform- 
ance or  readiness  to  perform  by  each  party  before  he  could 
exact  performance  by  the  other ;  and  that  the  vendor  could 
not  treat  the  contract  as  at  an  end,  without  refunding  the 
money  paid.^ 

37.  Sale  of  land,  for  a  sum  of  money  paid  down,  and  an 
agreement  to  pay  a  further  sum,  whenever  the  Court  should 
establish  the  validity  of  patent  titles  over  tax  titles.  This 
Court  afterwards  decided  the  revenue  laws,  under  which  the 
land  had  been  sold  for  taxes,  to  be  constitutional  and  valid. 
Held,  the  purchaser  was  not  further  liable.'^ 

1  Grandy  v.  Kittredge,  8  Cush.  5G2.      3  Markham  i'.  Stevenson,  15  111.  209.  -'' 

2  Johnson  v.  Jackson,  27  Miss.  498. 


34  LAW    OF   VENDORS   AND    PURCHASERS.  [ciI.  III. 

38.  Where,  by  the  contract,  possession  was  to  be  delivered 
before  payment,  and  was  so  delivered,  it  is  not  necessary  to 
tender  the  balance  of  the  money  before  commencing  an 
ejectment.^ 

39.  In  general,  if  a  party  to  tlic  contract  disables  himself 
to  perform  it,  the  other  party  acquires  the  same  rights,  as  in 
case  of  a  voluntary  neglect  or  refusal  on  the  part  of  the 
former,  (a)  Thus,  the  right  of  action,  for  breach  of  a  parol 
contract  of  purchase,  accrues  when  the  vendor  conveys  to  a 
stranger.^  So,  where  a  contract  was  made,  dated  April  20, 
and  executed  before  noon  of  that  day,  to  convey  land  within 
twenty  days  from  date  ;  and,  on  May  9,  the  land  was  con- 
veyed to  another  person  ;  held,  a  breach  of  the  contract.^ 
But  where  A.,  who  claimed  real  estate  under  articles  of  agree- 
ment, after  a  written  contract  of  sale  by  him,  conveyed  one 
moiety  of  his  interest  in  certain  larger  premises,  including 
the  ground  previously  sold,  to  one  having  notice  of  the  pre- 
vious sale,  and  with  an  understanding  that  it  was  to  be 
carried  out ;  held,  such  conveyance  did  not  amount  to  an 
abandonment  of  the  contract  on  the  part  of  A.,  and  fur- 
nished no  gTOund  to  the  first  purchaser,  to  refuse  to  complete 
the  bargain.^ 

1  Bassler  v.  Niesly,  2  Serg.  &  Rawle,        ^  Buttrick  v.  Holden,  8  Cash.  233. 
355.  *  Tiernau  v.  Roland,  15  Tenn.  429. 

2  Thurston  v.  Franklin  College,    16 
Penn.  154. 

(a)  On  the  otiier  hand,  the  party  against  whom  a  remedy  is  sought  may 
have  disabled  himself  to  perform.  But  although,  in  general,  a  bill  in  equity 
will  not  lie,  after  a  party  has  put  it  out  of  his  power  to  fulfil  a  contract  to 
convey  land,  when  the  fact  of  his  having  disqualified  himself  is  known  to 
the  complainant  previous  to  the  filing  of  the  bill ;  yet,  where  no  action  could 
be'sustained  at  law,  but  a  bill  in  equity  might  have  been,  the  rule  does  not 
apply.  Hence,  where  a  parol  contract  was  sought  to  be  enforced  on  the 
ground  of  part-performance,  and  no  action  could  have  been  brought  for 
damages,  this  was  held  no  objection  to  the  bill,  although  filed  after  the  party 
contracting  had  conveyed  away  the  property.  In  such  a  case,  the  assess- 
ment of  damages  in  equity  is  the  only  remedy.  Jervis  v.  Smith,  1  Hoffm. 
Ch.  4  70. 


CH.  III.]  CONSIDERATION. — PRICE.  35 

40.  With  regard  to  the  particular  acts  which  the  vendor 
or  vendee  is  to  perform,  in  order  to  establish  a  legal  claim 
against  the  other  party  to  the  contract;  there  is  some  con- 
flict in  the  authorities  upon  the  point,  under  what  circum- 
stances, and  by  whom  a  deed  of  the  land  sold  is  to  be 
tendered.  The  prevailing  rule,  however,  seems  to  be,  that 
where,  in  a  sale  of  land,  the  acts  of  the  parties  are  to  be 
concurrent,  in  order  to  maintain  an  action  for  the  price  or 
for  damages  for  a  breach,  the  seller  must  prove  tender  of  a 
deed,  or  that  the  defendant  had  waived  such  tender,  or  by 
his  conduct  made  it  nugatory.^  More  especially,  a  vendor  is 
bound,  on  payment  of  the  price,  to  prepare  and  tender  a 
deed.^  So,  where  land  was  sold,  to  be  paid  for  in  instal- 
ments, and  a  bond  given,  conditioned  for  payment  of  the 
several  instalments  and  conveyance  of  the  land  ;  held,  the 
payment  of  the  last  instalment  and  the  making  of  the  deed 
were  concurrent  acts,  and  an  action  for  such  instalment  could 
not  be  maintained,  without  showing  a  tender  of  the  deed.^ 
So,  a  bond  to  convey  is  broken  by  the  obligor's  refusal  to 
convey,  though  the  obligee  does  not  present  a  deed  for  him 
to  execute.'^  So,  to  enable  the  plaintiff  to  recover  the  pur- 
chase money  paid  on  a  contract  for  land,  after  the  defendant 
fails  to  make  conveyance  according  to  agi'eement,  it  is  not 
necessary  for  him  to  tender  a  deed  for  the  defendant  to 
execute,  unless  expressly  required  to  do  so  by  the  contract.^ 
So,  where  there  is  a  mutual  obligation,  on  a  pm-chaser  to 
pay  or  secure  the  purchase-money,  and  on  the  vendor  to 
convey  the  property,  an  offer  and  readiness  to  perform,  on 
the  part  of  the  purchaser,  is  ^enough,  especially  where  the^ 
vendor  refuses  to  convey  at  all.^  So,  where  a  vendor  has  no 
title,  and  cannot  procure  or  cause  one  to  be  made,  the  vendee 
may,  without  preparing  and  tendering  a  deed,  obtain  in 
equity  a  recission  of  the  contract."     So,  if  a  complaint,  upon 

1  Dubignon  2-.  Loud,  5  Eicli.  251.  ^  Carson    v.   Lucore,    1    Iowa,  33; 

2  Walling  V.  Kinnard,  10  Tex.  508.     Powers  v.  Bridges,  lb.  235. 

See  Duke  v.  Shore,  1  H.  Bl.  270.  «  Bellinger  v.  Kitts,  6  Barb.  273.  - 

^  Hook  V.  Nebeker,  1  Smith.  92.  "  Kead  v.  Walker,  18  Ala.  323. 

*  Garnett  v.  Yoc,  17  Ala.  74. 


36  LAW  OF  VENDORS  AND  PURCHASERS.      [CH.  III. 

a  contract  for  sale  and  exchange  of  land,  alleges  a  request  to 
convey  and  a  refusal,  which  are  'not  denied  by  the  answer  ; 
a  demand  for  a  deed  need  not  be  proved.^ 

41.  Where  several  lots  are  sold,  the  vendor  is  bound,  if 
required,  to  give  separate  deeds,  and  his  offer  to  execute  one 
deed  for  the  whole  does  not  render  the  contract  entire.^ 

42.  A  vendor,  having  tendered  a  deed,  conformably  to  his 
contract,  executed  and  acknowledged  according  to  the  law 
in  force  at  the  time  of  the  tender,  may  file  a  bill  in  chancery 
for  the  purchase-money ;  but  if,  before  a  decree,  (the  deed 
not  having  been  delivered,)  the  form  of  acknowledgment  be 
changed  by  law,  the  decree  for  the  complainant  should  be, 
that  he  deliver  the  deed  duly  executed  and  acknowledged, 
and  that  the  defendant  at  the  same  time  pay  the  purchase- 
money.^ 

43.  Although  it  is  the  duty  of  a  vendor  to  prepare  and 
offer  a  deed,  if  he  knows  the  vendee  ;  where  he  does  not, 
and  the  representative  of  the  vendee  refuses  information 
when  asked,  the  vendor  may  recover  the  purchase-money 
without  an  offer  of  the  deed.'* 

44.  So,  in  an  action  for  the  purchase-money  of  real  estate, 
for  which  the  purchaser  had  given  his  negotiable  promissory 
note,  the  plaintiff  is  not  bound  to  show  a  conveyance,  the 
presumption  being,  that  the  defendant,  having  thus  given 
his  note,  was  satisfied  with  the  execution  of  the  contract  on 
the  part  of  the  plaintiff.^ 

45.  On  the  other  hand,  it  has  been  held,  that,  in  the  absence 
of  any  express  agreement,  the  purchaser  pays  the  cost  of  a 
conveyance.^  So  it  has  been  held,  that  something  more 
than  simple  notice  is  necessary,  on  the  part  of  a  purchaser, 
of  his  design  to  rescind  the  agreement.  He  must,  on  the 
day  fixed  for  completion  of  the  contract,  or,  where  no  day  is 
fixed,  within  a  reasonable  time,  demand  a  conveyance,  with 

1  Pagan  v.  Davison,  2  Duer,  153.  *  Christian  v.  Nixon,  11  Ired.  1. 

2  Van  Eps  V.  Schenectady,  12  Johns.  ^  Lvman  v.  United  States  Bank,  12 
436.                                          '  How.  22a. 

3  Conwell  V.  Claypool,  8  Blackf.  124.  «  Winter  v.  Jones,  10  Geo.  190. 


m 

CII.  III.]  CONSIDERATION. — PRICE.  37 

notice  that,  if  the  contract  is  not  completed,  he  will  not  be 
bound  by  it ;  and,  by  the  custom  of  the  State  of  Pennsyl- 
vania, he  should  tender  for  execution  the  necessary  papers, 
especially  where  the  time  of  payment  is  optional  with  him.' 
So  also,  it  is  held  in-  New  York,  that  it  is  not  necessary  for 
a  vendor,  under  a  covenant  to  convey,  to  make  out  and 
tender  a  deed  on  the  day  the  purchase  is  to  be  completed. 
He  is  not  bound  to  prepare  it,  until  the  buyer  is  ready  to 
demand  it ;  and  even  then,  the  vendor  is  allowed  a  reason- 
able time  to  draw  and  execute  the  deed  ;  and,  after  being 
thus  drawn  and  executed,  he  is  to  hold  it  ready  for  delivery 
when  required ;  and  he  is  not  in  default  until  the  latter 
request  is  made.  Although  a  purchaser  may  prepare  the 
deed  and  tender  it  for  execution,  (and  then  only  one  demand 
is  necessary,)  yet  still  the  above  appears  to  be  the  settled  law 
of  the  State.'^  So,  where  one  agrees  to  convey  land,  on  the 
payment  of  money,  the  vendee  must  not  only  tender  or  pay 
the  money,  but  demand  a  conveyance  ;  and,  after  waiting  a 
reasonable  time  to  have  it  made  out,  must  present  himself 
to  receive  it.^  But  a  purchaser  is  not  bound  to  prepare  and 
tender  a  deed,  if  the  vendor  is  unable  to  give  a  title  as 
agreed.^  Nor  to  tender  the  purchase-money  and  demand  a 
title.^  And  any  obligation  on  the  part  of  one  party,  to  ten- 
der a  sufficient  instrument  for  execution  by  the  other,  may  be 
waived  by  a  general  refusal  of  the  latter  to  complete  the 
contract.  Thus,  the  vendors  of  real  estate,  under  articles  of 
agreement  with  one  who  claimed  under  one  of  the  vendors, 
in  due  time  executed  a  deed  to  the  vendee  and  her  heirs,  and 
endeavored  to  have  it  tendered  to  her,  but  the  tender  was 
prevented  by  her  sickness  and  death.  The  deed  was  after- 
wards offered  to  her  executors,  accompanied,  however,  with 
a  mortgage  and  bonds  for  execution.  The  deed  was  insuf- 
ficiently acknowledged  by  the  wives  of  the  grantors,  and  the 


1  Tiernan  v.  Roland,  15  Pcnn.  429.  *  Johnson  v.  Collins,  17  Ala.  318. 

2  Wells  V.  Smitli,  2  Echv.  78.  ^  Griggs  v.  Woodruff,  14  Ala.  9. 

3  Fuller  V.  Hubbard,  6  Cow.  13. 

4 


p 


3^  LAW    OF    VENDORS   AND   PURCHASERS.  [CII.  III. 

bonds  were  not  conformable  to  the  contract,  as  to  the  time 
of  payment,  but  the  executors  or  devisees  did  not  object  to 
receiving  them  on  this  ground,  but  refused  generally  to  per- 
form the  contract.  There  was  no  evidence  of  a  refusal  by 
the  vendors  to  amend  the  acknowledgment,  or  to  accept  of 
other  securities,  in  accordance  with  the  contract.  Held,  such 
tender  was  evidence  of  the  willingness  and  desire  of  the 
vendors  to  comply  with  their  agreement.^ 

46.  With  regard  to  the  party,  to  whom  payment  for  land 
purchased  is  to  be  made ;  it  has  been  doubted,  whether  a 
power  to  sell,  unrestricted,  authorizes  the  agent  to  receive 
payment.^ 

47.  Questions  sometimes  arise  from  the  joint  or  distinct 
interests  of  diiferent  parties  in  the  purchase-money  of  land, 
or  in  the  land  itself,  as  connected  with  the  price  paid,  or  to 
be  paid,  for  it. 

48.  Where  several  parties  agree  to  pay  a  certain  sum 
upon  another  party's  tendering  a  deed  ;  it  is  sufficient  to  offer 
the  deed  to  one  of  them.^ 

49.  Two  persons  united  to  purchase  a  tract  of  land,  for 
which  they  gave  $3,000  ;  and  entered  into  a  contract  under 
seal,  by  which  one  was  to  pay  $2,000,  and  the  other  $1,000, 
of  the  purchase-money,  and  the  land  to  be  equally  divided 
between  them.  Held,  each  was  to  have  a  moiety  of  the 
land.* 

50.  A.  and  six  others  entered  into  articles  of  agreement 
with  B.,  respecting  the  purchase  of  western  lands,  on  the 
joint  account  of  all.  The  seven  were  to  provide  funds,  to 
meet  the  drafts  which  B.  should  make  on  A.,  and  the  money 
was  to  be  expended  by  B.  in  making  the  purchases.  Con- 
veyances were  to  be  taken  to  A.,  in  trust  for  all  the  associates. 
B.  was  to  draw  the  drafts  at  not  less  than  ten  days'  sight, 
and  to  make  to  A.  monthly  statements  of  his  purchases.     B. 

'  Tiernan  r.  Koland,  15  rcnii.429.         1  Moo.  &  R.  326;  State  of  Illinois  v. 
'^  Hackney  v.  Jones,  3  Humphreys,     Delafielcl,  8  Paige,  527. 
612  :    9  Leigh,  387  ;   Mynn  v.   Joliife,        ^  Oatman  v.  Walker,  33  Maine,  67. 

*  Stubblefield  v.  Beazely,  5  Gratt.  51. 


(^n.  HI.]  CONSIDERATION. — PRICE.  39 

accordingly  purchased  lands  of  C.  in  Michigan,  took  a  con- 
veyance to  A.  and  placed  it  on  record.  For  a  portion  of  the 
purchase-money,  not  paid  down,  he  gave  the  notes  of  A.  at 
one  and  two  years,  signing  them  as  the  agent  of  A. ;  and,  when 
one  of  the  notes  became  due,  he  substituted  for  them  drafts 
on  A.  Soon  after  the  purchase,  B.  communicated  it  person- 
ally to  six  of  the  associates,  and  stated  to  them  the  price  and 
time  of  payment,  and  they  approved  thereof.  He  also  trans- 
mitted the  conveyance  to  A. ;  and  it  did  not  appear  that  A. 
or  any  of  the  associates  had  done  any  act  repudiating  the 
purchase ;  but  the  drafts  were  neither  accepted  nor  paid. 
Held,  the  associates  were  liable  to  C.  for  the  price  of  the 
lands  agreed  upon,  in  an  action  for  lands  sold  and  conveyed 
to  A.  at  their  request ;  and  that,  after  the  lapse  of  a  consid- 
erable time,  they  should  be  deemed  to  have  waived  any 
objection  to  the  purchase,  on  the  ground  of  B.'s  having  ex- 
ceeded his  authority.^     [Bronson,  J.,  and  Cady,  J.,  dissenting.] 

51.  A.  contracted  to  purchase  lands  of  B.,  and  then  to  sell 
a  part  of  them  to  C.  Afterwards,  A.  assigned  his  original 
contract  to  D.,  by  way  of  mortgage,  D.  having  notice  of  the 
contract  between  A.  and  C.  For  the  purpose  of  extinguish- 
ing the  interest  of  A.,  B.  exacted  a  forfeiture  of  the  original 
contract,  on  account  of  the  non-payment  of  the  purchase- 
money,  subject,  however,  to  the  rights  of  C.  and  D.,  and  D. 
subsequently  took  a  conveyance  from  B.  of  the  whole  of  the 
land.  Held,  the  portion  of  the  land  not  contracted  by  A.  to 
C.  was  the  primary  fund  for  the  payment  of  the  original 
purchase-money,  and,  such  portion  being  sufficient  for  that 
purpose,  that  D.  was  bound  to  convey  to  C.  his  portion  of 
the  land,  on  being  paid  by  C.  such  a  sum  only  as  remained 
unpaid,  on  the  contract  between  A.  and  C.^ 

52.  Land  of  A.  was  sold  on  an  execution  in  favor  of  B., 
and  C.  paid  to  B.  a  part  of  the  amount  of  the  judgment, 
under  an  understanding  that,  upon  the  payment  of  an  addi- 
tional sum,  B.  should  convey  the  land  to  C.  in  trust  for  the 

1  Sage  V.  Sherman,  2  Corast.  417.         ^  Crafts  v.  Aspinwall,  2  Comst.  289. 


40  LAW  OF  VENDORS  AND  PURCHASERS.       [CH.  III. 

wife  and  children  of  A.  C.  died,  without  having  paid  said 
additional  sum,  and  B.  paid  over  to  C.'s  administrator  the 
amount  which  C.  had  paid.  Held,  the  administrator,  by 
receiving  said  sum,  had  rescinded  the  contract  for  a  convey- 
ance made  between  B.  and  C.^ 

•  1  Smith  t'.  Smith,  1  Greene,  307. 


CH.  IV.] 


INTEREST. 


41 


CHAPTER    IV. 


INTEREST. 


I.  Claim  of  a  vendor  for  interest. 
13.  Rate  of  interest. 
15.  Interest  in  case  of  reversions. 


17.  Investment  of  tlie  purchase-mon«y. 
20.  Clainiof  a  vendee  for  interest. 
29.  Interest  on  money  paid  into  Court. 


1.  Having,  in  the  last  chapter,  considered  the  subject  of 
consideration  or  price,  I  proceed,  in  the  natural  order  of 
topics,  to  treat  of  the  liability  of  the  respective  parties  to  a 
contract  of  sale  to  pay  interest ;  the  one  upon  the  purchase- 
money  unpaid,  the  other  upon  the  purchase-money  paid,  but 
for  any  cause  subject  to  be  recovered  back  by  the  purchaser. 

2.  Upon  this  subject,  the  general  rule  is,  that  a  purchaser 
in  possession  must  pay  interest.'  So,  if  the  contract  specifies 
no  time  for  a  conveyance,  but  the  price  is  made  payable 
upon  receiving  a  deed  ;  the  law  implies  immediate  execution. 
Hence,  t^»^endor  becomes  immediately  liable  for  the  rents 
and  profits,  and  the  vendee  for  interest.^  So,  where  a  lease- 
hold farm  was  sold,  and  three  years  had  expked  pending  a 
suit  by  the  vendor  who  was  in  possession ;  interest  was 
allowed,  and  he  was  charged  with  a  rent.^  So,  interest 
begins  when  the  money  is  due — the  right  to  rents  and  profits 
when  the  vendee  is  entitled  to  possession.^  So,  where  par- 
ties already  in  possession  agreed  to  purchase,  and  pay  the 
purchase-money  on  a  particular  day,  "  on  a  good  and  valid 
title  being  made  and  executed,"  and  a  title  was  not  made  for 


'  Stevenson  v.  Maxwell,  2  Comst. 
408  ;  Hood  v.  Huff,  2  Const.  163  ;  Kes- 
ter  V.  Rockel,  2  W.  &  S.  365  ;  Ramsay 
I'.  Brailsford,  2  Desaus.  592. 

2  Hundley  v.  Lyons,  5  Munf.  342. 

4* 


3  Dyer  v.  Hargrave,  10  Ves.  505. 

''  Baxter  v.  Brand,  2  Dana,  298. 
See  Buchanan  v.  Lorman,  3  Gill,  82  ; 
Brockenbrougli  v.  Blythe,  3  Leigh,  647  ; 
Williams  v.  Rogers,  2  Dana,  375. 


42  LAW  OF  VENDORS  AND  PURCHASERS.       [CH.  IV. 

many  years,  but  they  remained  in  possession,  and  did  not 
appropriate  the  purchase-money ;  held,  they  were  liable  for 
interest  from  the  day  mentioned.' 

3.  But  where  payment  is  to  be  made  upon  conveyance  of 
the  land  at  a  certain  time,  and  it  is  not  thus  conveyed,  the 
purchaser  is  not  in  default  by  neglecting  to  pay  the  price, 
and  is  not  liable  for  interest  till  after  tender  of  a  deed.  So, 
though  he  has  taken  possession,  if  the  land  is  vacant  and 
unproductive.^  So,  a  purchaser  not  in  possession  is  bound  to 
pgy  interest,  and  take  the  rents  and  profits,  only  from  the 
time  when  a  good  title  is  first  shown,  not  from  the  time 
fixed  for  completion  of  the  purchase.^  So,  the  purchaser  is 
not  liable  for  interest,  when,  upon  finding  a  difficulty  in  the 
title,  he  immediately  offers  to  rescind  the  contract,  redeliver 
possession,  and  receive  back  the  money  advanced,  which  the 
vendor  refuses.^  So,  where  the  purchaser  tenders  the  pur- 
chase money,  and  the  vendor  refuses  it.^ 

4.  Stipulation,  that  if,  by  reason  of  any  unforeseen  or  un- 
avoidable obstacles,  the  conveyance  could  not  be  perfected 
for  execution  before  the  day  fixed,  the  purchaser  should  from 
that  day  pay  interest,  and  be  entitled  to  the  rents  and  profits. 
The  vendor  did  not  show  a  good  title  till  lon^  after  the 
specified  day.  Held,  he  was  entitled  to  interes^Bhly  from 
the  time  when  a  good  title  was  first  shown.^ 

5.  Where  the  conditions  of  sale  provide,  that  interest  shall 
be  paid  from  a  certain  day ;  if  the  purchase  be  not  then  com- 
pleted, the  purchaser  is  liable  for  interest,  though  the  delay 
was  caused  by  the  vendor;  otherwise,  where  there  is  no 
express  stipulation." 

6.  A  purchase  was  to  be  completed  on  a  certain  day,  when 
the  purchaser  was  to  have  possession,  and,  "  if  from  any 
cause  whatever  "  the  purchase-money  were  not  then  paid,  he 

1  Atty.-Gcn.    v.   Christ    Church,    13  ^  jo^gg  j,_  ]\judd,  4  Russ.  118. 
Sim.  214.     See  Fludyer  v.  Cocker,  12  *  Rutledge  r.  Smith,  1  M'C.  Ch.  403. 
Ves.  2.5;  Portman  v.  Mill,  3  Jur.  356  ;  ^  January  v.  Martin,  1  Bibb,  586. 
Enraght  v.  Fitzgerald,  2  Dw.  &  W.  43.  ^  Monk  v.  Huskisson,  4  Russ.  121,  n. 

2  Stevenson  i;.  Maxwell,  2  Sandf.  Ch.  "  Esdale  v.  Stephenson,  1  Sim.  & 
273.  St.  122. 


CH.  IV.]  INTEREST.  43 

was  to  pay  interest.  The  transaction  was  delayed  six 
months,  for  want  of  proper  abstracts.  Held,  unless  he  gave 
up  the  rent,  the  purchaser  must  pay  interest  during  that 
tirae.i 

7.  But  where  these  terms  of  purchase  were  used,  and  the 
vendor  furnished  an  abstract,  the  terms  of  which  required  to 
be  verified  aliunde ;  held,  he  was  not  entitled  to  interest, 
though  the  purchaser  had  not  demanded  such  verification.^ 
But  he  is  thus  entitled,  from  the  time  at  which  all  questions 
of  title  and  conveyance  are  settled  by  the  counsel  of  the 
parties ;  accounting  for  rent  received,  or  which  might  have 
been  received  with  due  diligence.^ 

8.  Where  specific  performance  was  prayed  both  by  original 
and  cross  bill,  after  considerable  delay  upon  the  title ;  the 
rents  were  ordered  to  be  received,  and  interest  paid,  from  the 
time  stipulated."*  So,  a  purchaser,  taking  possession  without 
a  conveyance,  was  compelled  to  pay  interest;  though  the 
money  was  to  be  paid  at  a  particular  day,  on  the  execution 
of  the  conveyance.'^  So,  a  purchaser  under  a  decree  for  sale, 
having  accepted,  and  (on  a  report  of  an  objection  to  the  title, 
for  which  compensation  was  ordered,)  returned,  possession, 
must  pay  interest  on  the  purchase-money  from  the  time  at 
which  he  took,  or  at  which  a  title  was  shown  under  which 
he  might  have  safely  taker^  possession,  and  is  entitled  to  an 
allowance  for  prior,  not  for  subsequent  deterioration  of  the 
estate.^ 

9.  The  vendee  is  liable  for  interest,  though  the  vendor  be 
in  default ;  unless  he  has  not  only  kept  the  purchase-money 
idle,  but  notified  the  vendor  of  the  fact." 

10.  A  purchaser,  upon  entering  into  possession,  paid  the 
amount  of  his  purchase-money  to  his  banker,  and  gave 
notice  that  he  was  ready  to  invest  it  in  such  manner  as  the 

'  Cowper  V.  Bakewell,  17  Eng.  Law        ^  Fludyer  v.  Cocker,  12  Ves.  27. 
&  Eq.  508.  ^  Binks  v.  Lord  llokeby,  2  Swanst. 

2  Sherwin    v.    Shakspeare,   23   Eng.     222. 

Law  &  Eq.  199.  '  Brockenbrough  v.  Blyth,  3  Leigh, 

3  Il)id.  619. 
*  Fenton  v.  Brown,  14  Ves.  143. 


44  LAW    OF   VExNDORS   AND    PURCHASERS.  [ciI.  IV. 

vendor  should  require  ;  but  no  answer  was  returned  to  that 
notice,  and  the  purchaser,  during  the  investigation  of  the 
title,  kept  in  the  hands  of  his  banker  a  balance  equal  to  the 
amount  of  the  purchase-money,  except  for  four  days,  when 
it  was  a  little  less.  Held,  the  purchaser  was  not  liable  for 
interest,  on  the  difference  between  his  average  balance  dur- 
ing the  period  in  question,  and  during  the  three  preceding 
years. 

11.  A  loss  or  deficiency  of  rents,  arising  while  the  vendor 
was  in  default  by  not  completing  the  conveyance,  the  pur- 
chaser not  having  taken  possession,  or  changed  the  receiver, 
was  ordered  to  be  made  good  out  of  the  purchase-money  in 
Court.2 

12.  Where  a  debtor  sells  land  to  his  creditor  in  payment 
of  the  debt,  he  is  liable  for  interest  from  the  liquidation  of 
the  debt  till  a  good  title  is  made.^  (s.  20.) 

13.  With  regard  to  the  rate  of  interest  to  be  paid  by  a 
purchaser,  it  has  been  sometimes  held  in  England,  that  he 
shall  be  charged  with  5  per  cent,  interest  on  the  purchase- 
money  unpaid.*  But,  on  the  other  hand,  on  the  bill  of  a 
vendor,  the  purchase-money  was  decreed  to  be  paid  with 
4  per .  cent,  from  the  time  it  ought  to  be  paid.^  And  this 
is  said  to  be  the  general  rate,  allowed  in  the  English  Courts 
of  Equity.*^  Thus,  when  purchsree-money  is  to  be  paid,  and 
a  conveyance  made,  at  a  given  time,  but  disputes  arise  as  to 
the  title,  and  the  purchaser  proposes  to  the  vendor  to  lay  out 
the  purchase-money  in  exchequer  bills  till  it  is  w^anted,  but 
the  vendor  returns  no  answer ;  and  the  money  is  so  laid  out ; 
the  vendee  is  at  the  risk,  and  is  entitled  to  the  benefit,  of  such 
purchase-money,  with  4  per  cent,  interest.'^  So,  where  the 
completion  of  a  contract  was  delayed  for  thirteen  years,  and 
the  property  became  deteriorated  by  dilapidations  ;  held,  the 


1  Winter  v.  Blades,  2  Sim.  &   Stu.        *  Burnell  v.  Brown.  1  Jac.  &  Walk. 

393.  168. 

■■2  Blennerhasset  y.  M'Namara,  1  Moll.        ^  Calcraft  v.  Roebuck,  1  Ves.  221. 
81.  ^  Child  V.  Lord  Abingdou,  1  Ves.  94. 

8  Hepburn  v.  Duulop,  1  "Wheat.  179.        "^  Acland  v.  Gaisford,  2  Mad.  28. 


en.  IV.]  INTEREST.  45 

loss  must  fall  on  the  purchaser,  as  the  state  of  the  title  was 
such,  that  he  ought  to  have  completed  his  purchase  and  taken 
possession  ;  and  he  should  pay  interest  at  4  per  cent  only 
from  the  time  of  filing  the  bill.^  So,  in  a  late  case,  real 
estate,  in  possession  and  reversion,  was  offered  for  sale  at 
auction  in  lots,  under  condition  that,  on  or  before  December 
25,  1849,  the  vendors  should  confir.m  the  master's  report  of 
purchases,  and  each  purchaser  pay  the  purchase-money  into 
Court,  and  be  entitled  to  rents  from  that  day ;  and  if,  from 
any  cause  whatever,  the  money  should  not  be  so  paid,  it 
should  bear  interest  from  that  day,  at  5  per  cent.  Through 
fault  of  the  vendors,  the  master's  report  was  not  confirmed  till 
August,  1851.  On  motion,  that  a  purchaser  of  a  reversion 
in  fee,  being  one  of  the  lots,  should  pay  the  purchase-money 
into  Court,  with  interest  from  December  25,  1849  ;  held, 
interest  should  be  paid  from  that  time  at  4  per  ccnt.^ 

14.  The  purchase-money  of  an  estate  was  to  be  paid  by 
six  instalments,  with  interest  at  5  per  cent.,  until  the  day 
of  payment.  It  was  subsequently  agreed,  that  the  last  in- 
stalment, instead  of  being  paid  at  the  appointed  day,  should 
remain  on  mortgage,  at  4|  per  cent.,  for  fourteen  years,  but 
that  the  stipulations  of  the  first  contract,  as  to  the  previous 
instalments,  should  continue  in  force.  Held,  the  reduction, 
from  5  to  4'  per  cent.,  was  dependent  upon  the  fulfilment  of 
the  terms  of  the  first  contract  with  respect  to  the  prior 
instalments.^ 

15.  It  has  been  held,  that  the  purchaser  of  a  reversion  {a) 
must  pay  interest  from  the  time  of  purchase.*     Thus,  where 

1  Miruhin  v.  Nance,  4  Beav.  332.  *  Trefusis  v.  Lord   Clinton,  2  Sim. 

^  W;illis  r.  Sard,  13  Eng.  Law  &  359  ;  Bailey  v.  CoUett,  23  Eng.  Law  & 
Eq^.  138.  Eq.  263. 

^  Attwood    V.  Taylor,    1    Mann.    & 
Gran  jr.  279. 


(a)  As  to  interest,  in  case  of  the  sale  of  timber  or  Jixtures,  with  refer- 
ence to  the  increasing  value  by  natural  growth  in  the  one  case,  and  the 
deterioration  arising  from  wear  and  tear  in  the  other;  see  Dart  on  V.  & 
P.  295-6  ;  Dyer  v.  Hargrave,  10  Ves.  510;  Dakin  v.  Cope,  2  Russ.  176. 


46  LAW   OP   VENDORS   AND   PURCHASERS.  [CJI.  IV. 

a  reversion  expectant  on  an  estate  for  life  was  decreed  to  be 
sold,  B.  was  confirmed  the  best  purchaser,  and  the  order  made 
absolute  on  the  1st  of  January,  1724  ;  and  in  January,  1726, 
B.  was  ordered  to  bring  his  money  into  the  bank.  The  life 
having  dropped,  held,  if  the  life  had  dropped  the  next  day 
after  the  report  of  B.'s  being  the  best  purchaser  was  made 
absolute,  the  purchase  must  have  stood ;  and  as  from  that 
time  the  life  was  wearing,  so  from  that  time  the  purchaser 
ought  to  pay  interest.^ 

16.  But,  on  the  other  hand,  it  has  been  held  that  the 
purchaser  of  a  future  interest,  after  a  term,  shall  not  pay 
interest,  or  an  increased  price,  for  a  part  of  the  term  elapsing 
before  the  purchase  is  completed,  unless  the  delay  be  through 
his  fault.'^ 

17.  The  question  of  interest  sometimes  arises  from  an 
investment  or  deposit  of  the  pm-chase-money. 

18.  The  effect  of  a  deposit  by  a  vendee,  with  notice  to  the 
vendor,  is  said  to  be,  to  stop  or  determine  the  rate  of  interest. 
But  such  deposit  does  not  operate  as  a  tender  and  appropri- 
ation, transferring  the  risk  as  to  the  principal.  Therefore, 
upon  an  investment  in  stock  by  the  vendee,  the  title  not 
being  ready,  and  the  vendor  having  notice,  but  returning  no 
answer,  the  advantage  by  a  rise,  as  the  loss  by  a  fall,  is  the 
vendee's.^  But  where,  pending  a  dispute  concerning  the 
title  of  land  contracted  to  be  sold,  and  to  avoid  the  question 
of  interest,  the  vendor  authorized  the  purchaser  to  invest 
the  price  in  funds  in  their  joint  names,  if  done  by  a  certain 
day,  which  was  done  accordingly  ;  the  funds  having  risen 
in  value  ;  held,  the  vendor  should  have  the  benefit  of  it.* 

19.  A  purchaser  is  not  liable  for  interest  on  the  deposit^ 
even  where  he  has  rendered  a  suit  necessary,  by  refusing  to 
perform  the  contract,  on  the  ground  of  an  unfounded  objec- 
tion to  the  title.^ 

20.  The  purchaser,  as  well  as  vendor,  may,  under  sor^ 

'  Ex  parte  Mannintj;,  2  P.  Wms.  410.         *  Burroughs  v.  Browne,  15  Eng.  Law 

2  Growsock  v.  Smith,  3  Anstr.  877.       &  Eq.  166. 

2  Roberts  r.  Massey,  13  Ves.  561.  *  Bridges  v.  Robinson,  3  Men  694. 


CII.  IV.]  INTEREST.  47 

circumstances,  make  a  claim  for  interest.  Thus,  where  the 
sale  is  made  in  payment  of  a  debt,  the  vendor  must  pay 
interest,  from  the  time  the  debt  is  liquidated  until  he  makes 
a  good  title  ;  and  the  vendee  is  accountable  for  the  rents  and 
profits,  from  the  time  the  title  is  perfected,  until  the  contract 
is  specifically  performed.'  (s.  12.)  So,  the  agreement  not 
being  completed  within  the  time  specified,  the  purchaser  shall 
be  allowed  interest  for  such  time  as  the  purchase- money  has 
been  kept  dead  for  this  special  purpose.^ 

21.  But,  on  the  other  hand,  it  has  been  held,  that  a  pur- 
chaser out  of  possession  cannot  claim  interest  on  the  pur- 
chase money,  though  he  has  laid  it  aside  till  the  vendor 
should  show  a  good  title,  and  it  has  thereby  become  unpro- 
ductive.3  So  also,  that  a  party  recovering  back  a  deposit, 
paid  on  the  purchase  of  real  property,  is  not  entitled  to 
interest.*  So,  if  the  contract  is  rescinded,  but  not  for  fraud, 
the  purchaser  having  paid  the  price,  and  taken  possession ; 
the  use  of  the  money  and  that  of  the  land  are  held  to  balance 
each  other;  and  the  decree  should  in  general  restore  the 
money  without  interest,  and  the  land  without  rents  and 
profits.  Otherwise,  in  case  of  valuable  and  permanent  im- 
provements by  the  purchaser,  or  deterioration  of  the  property 
through  his  default ;  in  which  cases,  a  valuation,  account, 
and  settlement  shall  be  made  accordingly.^ 

22.  Bill  by  a  purchaser,  for  specific  performance.  The 
vendor,  for  fifteen  years,  had  retained  possession  of  the  whole 
estate,  and  of  one  third  of  the  purchase-money.  Held,  he 
should  be  charged  with  interest  on  one  third  of  the  rents  and 
profits.^ 

23.  Where  an  auctioneer,  as  agent  for  the  vendor,  agrees 
to  sell,  according  to  the  conditions,  by  .which  the  purchaser 
is  to  pay  down  immediately  a  deposit,  and  the  auction-duty, 

'  Hepburn  v.   Dunlap,   1   Wheaton,        *  Bradshaw  v.  Bennett,  5  Carr  &  P 

179.  48. 

-  Ilowland  v.  Norris,  1  Cox,  .59.  &  Williams  i'.  Rogers,  2  Dana,  375. 

■^  De  Vesmc  v.   Dc  Vesme,    13  Jur.         «  Burton  v.   Todd;  Todd  v    Gee    1 

1037.     But  see  Dart  on  V.  &  P.  294.  Swanst.  25.5. 


48  LAW  OF  VENDORS  AND  PURCHASERS.      [CH.  IV. 

and  the  residue  of  the  purchase-money  upon  a  day  certain, 
on  having  a  good  title,  and  the  vendor  is  to  prepare  and 
deliver  an  abstract;  the  auctioneer  is  not,  upon  a  failure  of 
the  contract,  in  consequence  of  a  defective  title,  personally 
responsible  for  interest  upon  the  deposit  and  auction-duty, 
unless  the  money  be  demanded,  or  notice  given  to  him  that 
the  contract  has  been  rescinded.^ 

24.  So,  an  auctioneer,  who  receives  a  deposit  from  the 
purchaser,  is  a  mere  stakeholder,  liable  to  pay  the  money  at 
any  time ;  and  therefore,  although  he  place  the  money  in 
the  funds  at  interest,  he  is  not  liable  to  pay  such  interest  to 
the  vendor,  when  the  purchase  is  completed ;  though  the 
vendor  (without  the  concurrence  of  the  vendee)  gave  him 
notice  to  invest  the  money  in  government  securities.^ 

25.  So,  where  a  purchaser  of  an  estate  by  auction  de- 
posited a  sum  with  the  auctioneer,  as  part  of  the  purchase- 
money,  until  he  should  receive  a  good  title,  according  to  the 
conditions  of  sale ;  and  no  good  title  was  made  out;  but  the 
treaty  was  kept  open  with  the  auctioneer  for  four  years,  and 
no  demand  made  on  him  for  the  deposit ;  held,  the  auctioneer 
was  not  liable  for  interest.^ 

26.  But,  where  a  vendor  filed  a  bill  for  specific  perform- 
ance, but,  not  being  able  to  make  a  good  title,  his  bill  was 
dismissed  ;  held,  he  should  return  the  deposit  with  interest.* 
So,  where  a  vendor  omits  to  make  out  a  good  title,  within 
the  stipulated  time,  and  the  vendee  dies,  his  executor  may 
sue  for  loss  of  interest  on  the  deposit-money,  and  the  ex- 
pense of  investigating  the  title.^  The  plaintiffs,  purchasers 
of  mines,  having  paid  part  of  the  purchase-money,  and  been 
let  into  possession,  agreed  to  pay  the  residue  by  instalments, 
and  in  the  mean  time  half-yearly  interest  on  what  should 
remain  due.  Having  paid  one  half  year's  interest,  but  no 
portion  of  the  remaining  purchase-money,  they  filed  their 

1  Gaby  v.   Driver,   2   You.   &  Jerv.  ^  Leei».  Munn,  8  Taunt.  45;  1  Moore, 
549.  481. 

2  Harrington  r.  Iloggart,  1  Barn.  &  *  Anson  v.  Hodges,  5  Sim.  227. 
Adolph.  577.  6  Ormc  v.  Broughton,  10  Bing.  533- 


CH.  IV.]  INTEREST.  49 

bill  to  set  aside  the  contract.  The  vendor  then  recovered 
the  next  four  half-yearly  portions  of  interest  by  several 
successive  actions,  but,  upon  bringing  his  action  for  the 
fifth,  was  restrained  by  an  order  for  an  injunction  in  this 
suit.  The  terms  of  that  order,  dated  the  28th  of  February, 
1829,  were,  that,  upon  the  plaintiffs'  paying  into  Court  the 
sum  which  was  the  subject  of  that  action,  the  defendant 
should  be  restrained,  &c.,  and  that,  upon  their  continuing 
from  time  to  time  to  pay  in  the  like  sums  half-yearly,  the 
injunction  should  be  continued  to  the  hearing.  Under  that 
order,  several  half-yearly  instalments  of  interest  were  paid 
in,  and  invested,  and  made  to  accumulate  in  the  funds ; 
but,  under  tw"o  subsequent  orders,  made  at  the  instance  of 
the  defendant,  for  the  purpose  of  enlarging  publication,  all 
further  payments  into  Court  were  suspended  until  the  hear- 
ing. The  cause  was  heard  in  November,  1831,  and  in  the 
following  November  judgment  was  given  in  favor  of  the 
plaintiffs ;  under  which  the  accumulated  stock  was  sold  out, 
and  paid  to  them,  and  the  defendant  was  compelled  to 
pay  <£ 9,766  for  costs.  In  March,  1838,  the  House  of  Lor'ds 
reversed  this  decree,  and  remitted  the  cause  back  to  this 
Court,  to  do  therein  as  should  be  just,  and  consistent  with 
their  reversal.  Held,  1st,  that  the  defendant  was  entitled  to 
be  repaid  the  sum  of  .£9,766,  but  without  interest. 

2d.  That  as  to  the  instalments  of  interest,  which  became 
due  on  the  unpaid  purchase-money,  after  the  decree  in  the 
Court  below,  the  defendant  had  no  remedy  in  this  suit,  but 
must  be  left  to  his  remedy  at  law. 

8d.  That  the  defendant  was  entitled  to  be  repaid  in  this 
suit  the  instalments  of  interest,  which  became  due  between 
the  orders  for  suspension  and  the  decree  of  the  Court  below, 
but  that  he  was  not  entitled  to  interest  on  those  instalments.^ 

26.  Where  payments  have  been  made  by  a  vendee,  at 
different  times,  all  exceeding  the  interest  then  due,  and  the 

'  Small  V.  Attwood,  3  Y.  «Sb  Coll.  105. 
5 


50  LAW   OF   VENDORS    ANI)    PURCHASERS.  [CII.  IV. 

decree,  in  a  suit  by  the  vendor  for  a  specific  performance, 
directs  an  account  of  what  is  due  for  principal  and  interest, 
rests  shall  be  made.'  So,  where  a  sale  is  avoided,  the 
purchase-money  for  which  was  secured  by  an  instrument 
bearing  interest,  and  interest  had  been  paid  thereon,  such 
payments  are  to  be  considered  as  principal,  and  are  to  be 
refunded  with  interest.^  So,  a  purchase  being  set  aside  for 
fraud,  and  the  purchaser  decreed  to  pay  an  occupation  rent, 
receiving  back  his  purchase-money  with  interest,  there  being 
a  considerable  excess  of  the  rent  above  the  interest ;  annual 
rents  were  directed  to  be  made  in  the  accounts,  until  the 
excess  of  the  rent  should  liquidate  the  principal.^ 

27.  The  question  of  usury  sometimes  arises,  in  connection 
with  the  price  of  lands  sold.  Agreement  to  purchase  houses 
for  .£431  10s. ;  possession  to  be  given,  and  £200  paid  imme- 
diately, the  rest  with  interest  at  Michaelmas ;  but,  if  not 
then  paid,  the  purchaser  to  pay  "  in  lieu  of  interest  upon  the 
same  a  clear  rent  of  <£42  per  annum,"  out  of  which  was  to 
be  deducted  interest  for  the  X200  paid.  Held,  not  usurious.* 
Sale  of  an  estate  at  a  certain  price,  to  be  paid  by  instal- 
ments, with  interest,  at  6  per  cent.  Notes  were  given  for 
these  sums,  compounded  of  the  instalments,  and  that  which 
was  called  interest.  Held,  the  whole  must  be  considered  as 
purchase-money,  and  the  bargain  was  not  usurious.^ 

28.  Questions  sometimes  arise,  as  to  an  order  for,  and  the 
effect  of,  a  payment  of  the  purchase-money  of  lands  into 
Court,  and  a  claim  of  interest  thereupon. 

29.  It  is  said,  purchase-money  paid  into  Court  is  the  prop- 
erty of  the  vendor.'^ 

80.  Generally,  a  purchaser  shall  not  retain  possession,  and 
also  keep  his  purchase-money.  But  where  he  was  willing  to 
give  up  possession,  and  it  was  a  question  whether  there  was, 

'   Griffith  V.  Heaton,   1    Sim.  &  Stu.  *  Spurrier  v.  Mayoss,  1   Ves.  527  ;  4 

271.  Bro.  C.  C.  28. 

2  Murray  v.  Palmer,  2  Sch.  &  Lef.  ^  Becte  v.  Bidgood,  7  Barn.  &  Cress. 
488.  453  ;   1  Mann.  &  Gran.  324. 

3  Donovan  v.  Fricker,  Jac.  165.  ^  Qq\\  j._  Watson,  2  Sim.  &  Stu.  402. 


en.  IV.]  INTEREST.  51 

or  not,  a  subsisting  contract,  the  Lord  Chancellor  refused  to 
order  payment  of  the  purchase-money  into  Court.^ 

31.  Payment  to  the  solicitor  for  all  parties  in  the  suit,  is 
equivalent  to  payment  into  Court.^ 

32.  Where  a  contract  is  cancelled  by  decree  in  Chancery 
for  fraud  of  a  party,  a  decree  that  he  shall  repay  what  he 
has  received  under  it,  with  interest  until  paid,  is  proper.^ 

33.  A  purchaser,  complaining  that  his  conveyance  did  not 
comprise  the  whole  of  the  property  which  he  had  contracted 
for,  filed  his  bill  for  a  conveyance  of  the  remainder,  and 
obtained  an  injunction  against  any  suit  for  the  purchase- 
money,  part  of  which  was  afterwards  ordered  to  be  paid  into 
Court,  to  abide  the  event  of  the  suit.  The  bill  being  dis- 
missed ;  held,  the  vendor  was  entitled  to  the  residue  of  the 
purchase-money,  and  the  interest  upon  it,  to  the  time  of 
payment,  although  the  purchase-money  in  Court  had  not 
been  laid  out,  and  no  interest  accrued  thereon.* 

'  Morgan  v.  Shaw,  2  Mer.  138.  3  Perkins  i;.  Rice,  Litt.  Scl.  218. 

2  Price  V.  North,  2  Y.  &  Coll.  620.  *  Humphries  v.  Horn,  3  Hare,  276. 


52 


LAW  OF  VENDORS  AND  PURCUASERS. 


[Cll.  V. 


CHAPTER    V. 


PARTIES   TO    CONTRACTS. 


1.  Necessity  of  parties;  uncertainty, 
&c. 

6.  Joint  parties. 
11.  HusbiUKl  and  wife. 
16.  Ilepresentativcs    of    a    party    de- 
ceased. 
32.  Trustees  and  cestuis  que  trust. 


34.  Agents  ;  their  authority ;  it  may  be 
verbal;  construction  of  written  powers, 
&c. 

47.  Form  of  the  contract ;  whether  it 
binds  the  agent  or  the  principal. 

58.  Trust,  arising  from  an  agency. 


1.  To  render  valid  a  contract  for  the  sale  and  purchase  of 
lands,  as  in  other  contracts,  there  must  be  legally  existing 
parties.  It  is  not  necessary  that  the  parties  should  be  ex- 
pressly named.  But,  if  there  is  nothing  in  the  instrument 
itself,  nor  in  the  nature  of  the  transaction,  which  shows  who 
are  the  parties,  the  contract  is  void  for  uncertainty.' 

2.  In  some  cases,  however,  the  party  to  whom  final  con- 
veyance is  to  be  made,  need  not  be  at  the  time  distinctly 
ascertained.  Thus,  a  bond  to  convey  lands  to  a  board  not 
in  esse,  for  public  purposes,  in  consideration  of  the  location 
of  a  county  seat  of  justice,  is  not  void,  by  reason  of  the 
want  of  a  grantee.^ 

8.  A  statute,  creating  a  county,  appointed  commissioners 
to  locate  the  seat  of  justice,  in  May,  1826,  to  receive  dona- 
tions in  land,  and  to  take  bonds  of  persons  proposing  to  give 
khids,  payable  to  a  board  of  justices,  (whose  appointment 
was  not  to  take  effect  until  June,)  and  their  successors  in 
office,  which  bonds  the  commissioners  were  required,  by  law, 
to  deliver  to  the  board  of  justices.  A  party,  proposing  to 
give  lands,  delivered  to  the  commissioners  a  bond  from  him- 
self to  the  board  of  justices  to  be  thereafter  organized,  and 
their  successors  in  office,  for  the  conveyance  of  the  lands, 


'  Webster  v.  Ela,  5  N.  Hamp.  540. 


-  Sargeant's,  &c.  v.  The  State  Banli, 
&c.,  4  McLean,  339. 


CII.  V.j  PARTIES   TO    CONTRACTS.  53 

which  bond  was  delivered  by  the  commissioners  to  the  jus- 
tices. Held,  the  bond  was  not  void,  for  want  of  obligees  in 
existence  at  the  time  of  its  delivery  to  the  commissioners, 
but  was  evidence  in  defence  of  an  action  of  ejectment, 
brought  by  the  heirs  of  the  obligor,  against  a  party  who 
occupied  the  land  twenty  years  under  a  title  derived  from 
the  board  of  justices.^ 

4.  It  is  not  always  necessary,  that  the  party  binding  him- 
self by  a  contract  should  himself  receive  the  consideration 
of  such  contract.  But,  in  general,  a  party  is  not  bound  by 
an  agreement  relating  to  lands,  where  the  consideration  is 
past,  "more  especially  if  another  person  had  the  benefit  of 
such  consideration,  or  if  the  contract  is  an  unequal  and 
unreasonable  one. 

5.  Declaration,  that  a  surveyor,  in  consideration  of  a  sum 
paid  him  by  the  plaintiff,  promised  to  furnish  a  land-warrant, 
and  enter  and  survey  for  the  plaintiff  a  piece  of  vacant  land, 
in  order  that  the  plaintiff  might  obtain  a  grant  thereof ;  that 
he  whoUy  failed  to  make  the  entry ;  and  that  the  defendant, 
his  successor,  in  consideration  of  the  promises  of  his  prede- 
cessor, and  the  payment  made  to  him  by  the  plaintiff,  and 
being  required  by  the  plaintiff  to  enter  the  land  for  him, 
agreed  to  fm-nish  the  necessary  warrant,  and  enter  it  in  the 
plaintift''s  name  in  his  office,  and  seasonably  survey  it,  so 
that  the  plaintiff  might  obtain  a  grant ;  and  that  the  plaintiff 
agreed  to  pay  the  defendant  his  fees  for  the  survey.  That 
the  defendant  failed  to  furnish  a  warrant  and  enter  the  land 
for  and  in  the  name  of  the  plaintiff,  but  entered  and  sur- 
veyed it  for  another  person,  who  had  received  a  patent 
therefor.  Held,  as  a  count  in  assumpsit  upon  a  special  con- 
tract, the  declaration  set  forth  no  sufficient  consideration 
between  the  parties  ;  and  as  a  count  in  case,  it  set  forth  no 
such  official  misbehavior  or  neglect,  as  furnished  a  ground  of 
action. 2 

i  Sargeant  v.  State  Bank,  &c.  12  How.  -  Hale  v.  Crow,  9  Gratt.  263. 

371. 

5* 


54  LAW   OF   VENDORS   AND   rURCHASERS.  [Cll.  V. 

6.  Where  a  person  had  purchased  land  at  sheriff's  sale,  but 
had  not  paid  the  money,  and  afterwards  became  attainted, 
under  an  act  of  the  legislature,  held,  the  State  could  not,  by 
paying  the  money,  perform  the  condition,  so  as  to  make  the 
deed,  which  had  been  delivered  as  an  escrow,  absolute,  and 
thereby  vest  the  estate  in  the  purchaser ;  but  he  was  to  be 
considered  as  civiliter  mortuus.^ 

7.  In  this  connection,  it  may  be  stated,  that  where  the 
vendee  assigns  the  contract,  and  the  assignee  takes  posses- 
sion, the  vendor,  though  he  cannot  compel  the  assignee  to 
pay  the  purchase-money,  may,  by  virtue  of  his  lien  on  the 
land,  call  on  him  to  pay  the  money,  or  to  surrender  the  land, 
or  to  have  it  sold  for  the  benefit  of  the  vendor.  And  where 
the  administrators  of  the  vendee  assigned  a  contract  for  the 
purchase  of  land  to  the  defendants,  who  covenanted  and 
agreed  to  take  up  and  cancel  the  contract,  and  to  indemnify 
and  save  harmless  the  administrators  from  all  damages,  &c., 
which  they  might  sustain  by  reason  of  the  contract,  &c. ; 
held,  that  the  administrators  were  entitled  to  specific  per- 
formance of  the  covenants,  and  a  want  of  assets  could  not 
be  objected,  in  limine,  to  the  relief  sought.^ 

8.  Contracts  for  the  sale  of  lands  may  involve  the  rights 
and  obligations  of  parties  jointly  interested.  Thus,  all  the 
parties,  bound  by  an  executory  contract  to  make  titles,  must 
join  in  the  deed,  in  order  to  a  complete  performance.  But 
all  will  be  discharged,  by  the  acceptance,  on  the  part  of  the 
vendee,  of  something  in  satisfaction  of  the  obligation,  and 
in  place  of  strict  performance,  from  one  alone.-^ 

9.  Two  parties,  each  claiming  title  to  the  same  land, 
derived  from  distinct  sources,  but  neither  of  which  could  be 
perfected  without  a  confirmation  from  the  government  ; 
entered  into  a  written  and  sealed  agreement,  fully  reciting 


1  Simonds  i;.  Catlin,2  Caines,  61,  64.         ^  Johnson   v.   Collins,^  20   Ala.  435 

2  Champion  v.  Brown,  6  Johns.  Ch.     But  see  Coo  v.  Harrahan,  Mass.  S.J.  C. 
398.  Suffolk,  March,  1857. 


CII.  v.]  PARTIES   TO    CONTRACTS.  55 

their  respective  claims,  and  providing  that  they  should  share 
equally  if  the  title  were  confirmed  ;  if  not,  in  the  money 
awarded  by  government,  in  lieu  thereof.  The  title  was  con- 
firmed, and  a  title  granted  to  the  defendant,  one  of  the 
parties,  in  his  own  name.  The  other  having  in  the  mean 
time  died,  his  heirs  file  a  bill  for  specific  performance.  Held, 
as  the  agreement  fully  recited  the  respective  interests  of  the 
parties,  the  defendant  could  not  set  up  in  defence  an  in- 
equality of  interest  at  that  time.^ 

10.  Bill  for  specific  performance.  By  a  written  contract, 
the  defendant  agreed  to  repair  the  plaintiff's  mill,  building, 
fences,  &c.,  and  the  plaintiff  to  sell  to  the  defendant,  on 
completion  of  such  repairs,  one  undivided  moiety  of  the 
premises.  It  was  further  agreed,  that  the  parties  should  then 
form  a  partnership,  to  work  the  mill  for  a  year,  when,  if  the 
plaintiff  should  elect  to  withdraw,  the  defendant  should  pay 
him  a  certain  sum  for  the  premises ;  otherwise,  the  partner- 
ship to  continue  for  five  years.  Held,  not  to  be  a  case  for 
specific  performance.^ 

11.  Agreement  under  seal,  between  the  plaintiffs,  husband 
and  wife,  and  the  defendant  and  five  other  persons,  interested 
in  certain  real  property,  that  "  the  said  parties,  namely,  (the 
plaintiffs)  on  the  one  side,  and  (the  defendant  and  the  other 
five  persons)  on  the  other,  shall,"  at  a  time  and  place  to  be 
appointed,  "  bid  against  each  other  for  the  right  to  take 
said  estate,  and  thereupon  said  party  obtaining  the  right  to 
take  the  same  shall  receive  a  conveyance  of  the  interest  of 
the  other  party  therein,  and  shall  pay  therefor  to  the  other 
party  the  appraised  value  of  the  interest  so  conveyed, 
together  with  the  sums  bid  for  the  right  of  taking  said  estate, 
in  cash,  upon  the  delivery  of  the  deed."  The  plaintiffs  bring 
an  action  upon  this  agreement  against  the  defendant  alone, 
alleging  that  at  the  time  and  place  appointed  "  the  parties  to 
said  agreement  bid  against  each  other  as  aforesaid,  and  (the 
defendant)  did  bid  for  said  right "  a  certain  sum,  "  being  the 

1  Huntr.  Thorn,  2  Mich.  213.  -  Reed  v.  Vidal,  5  Rich.  Eq.  289. 


56  LAW    OF   VENDORS   AND    PURCHASERS.  [CII.  V. 

highest  sum  bid  therefor,  and  thereupon  became  entitled  to 
take  the  interest  of  the  plaintiffs  therein,  and  became  bound 
to  take  the  same  and  to  pay  therefor  the  amount  of  said 
appraisal  and  of  said  bid  ;  and  afterwards  the  plaintiffs 
executed  a  deed  of  the  interest  of  said  female  plaintiff 
therein,  and  tendered  the  same  to  the  other  parties,  to  said 
agreement,  yet  the  defendant  wholly  refused  to  accept  the 
same  or  pay  the  consideration  thereof."  Held,  on  demurrer, 
the  action  could  not  be  maintained.  Shaw,  C.  J.,  says :  "  The 
result"  of  the  terms  of  the  agreement  is,  "that  the  party 
owning  four  fifths  of  the  estate  should  give  the  other  j^arty, 
for  his  one  fifth,  more  than  the  appraised  value  of  the  whole. 
It  may  be  so,  and  the  party  may  be  bound ;  but  if  so,  it 
must  be  by  force  of  strict  law,  and  cannot  be  aided  by  equit- 
able considerations.  The  agreement  exactly  defines  the 
parties  who  are  to  bid  against  each  other — the  plaintiffs  on 
the  one  side,  and  the  defendant  and  five  others  on  the  other. 
The  declaration  does  not  aver  that  the  parties  bid,  but  that 
the  defendant  bid.  This  is  not  conformable  to  the  contract. 
If  the  defendant  bid  for  his  party,  then  the  whole  were 
purchasers,  and  the  suit  should  have  been  against  them 
all.  But  the  averment  is,  not  only  that  the  defendant  made 
the  bid,  but  that  he  became  bound,  and  the  plaintiffs  executed 
and  tendered  a  deed  to  him.  The  thing  to  be  bid  for  and 
conveyed  was  the  interest  of  Pierce  and  wife  in  the  real 
estate  ;  whereas  the  deed  was  of  the  interest  of  the  female 
plaintiff."  i 

12.  The  question  of  parties  sometimes  arises,  in  connec- 
tion with  the  respective  rights  and  obligations  of  husband 
and  wife. 

13.  Upon  this  subject  the  general  rule  is,  that  femes 
covert  cannot  bind  their  interest  in  lands,  except  in  the 
precise  form  prescribed  by  law.^  Therefore  an  agreement 
by  a  feme  covert,  even  with  the  assent  of  her  husband,  for 
the  sale  of  her  real  estate,  is  void,  and  cannot  be  enforced  in 

1  Pierce  v.  Harrington,  1  Gray,  595.      -  Dunlap  v.  Mitchell,  10  Ohio,  117. 


CH.  v.]  PARTIES   TO    CONTRACTS.  57 

Chancery  against  her.'  But  the  husband  has  such  an  in- 
terest in  lands  owned  in  fee  by  the  wife,  that  he  can  give  a 
lease  thereof  for  a  term  of  years,  which  will  be  valid  during 
the  coverture,  at  least ;  and  an  agreement  to  give  such  a 
lease,  if  not  otherwise  objectionable,  may  be  enforced  in  a 
Court  of  Chancery .2  And  where  one  agrees  to  sell  land,  and 
to  execute  and  deliver  a  warranty  deed  thereof;  his  wife 
must  join  in  such  deed.^ 

14.  A.,  and  B.  his  wife,  conveyed  her  land  to  C,  the 
daughter  of  B.,  and  wife  of  D.,  by  a  deed  of  gift ;  after 
which  A.  was  imprisoned  on  an  execution  in  favor  of  E., 
and  held  in  close  confinement.  With  a  view  to  obtain  his 
liberation,  C.  agreed  with  D.,  that,  if  he  would  assume  the 
debt  to  E.,  by  giving  his  note  for  the  amount,  she  would  pay 
it  from  the  avails  of  the  land  so  conveyed  to  her.  D.  gave 
his  note  accordingly,  and  A.  was  liberated.  Immediately 
afterwards  C.  died ;  and  D.,  having  paid  the  note,  exhibited 
to  the  Court  of  Probate  his  claim  for  the  money  so  paid, 
against  her  estate.  Held,  1,  that  the  agreement  between  C. 
and  D.,  having  been  executed  on  one  part,  was  not  within 
the  Statute  of  Frauds,  and  might  be  proved  by  parol  ; 
2,  that  if  D.  had  an  equitable  claim,  which  a  Court  of  Chan- 
cery, on  suitable  process,  with  the  parties  in  interest  before 
it,  could  enforce,  it  was  not  competent  to  a  Court  of  Probate 
to  allow  it ;  but,  3,  that  the  agreement,  having  been  made 
by  a  feme  covert  with  her  husband,  without  benefit  to  her, 
was  void,  and  could  not  be  enforced  anywhere.* 

15.  Where  an  agreement  does  not  designate  the  person  to 
whom  the  consideration  is  to  be  paid,  the  law  raises  an  as- 
sumpsit in  favor  of  those  who  are  the  meritorious  cause  of 
Unction,  or  from  whom  the  consideration  moves.  Thus,  the 
consideration  being  the  sale  of  the  wife's  inheritance,  in  the 
absence  of  an  express  promise,  the  law  raises  one  to  the  hus- 
band and  wife,  on  which  the  husband  may  sue,  either  in  his 

^  Butler  V.  Buckingliam.  5  Da}',  492.         ^  Pomcroy  v.  Drury,  14  Barb.  418. 
2  Eaton  V.  Whitaker,  IS  Conu".  222.  *  Watrous  v.  Chalker,  7  Conn.  224. 


58  LAW    OF   VENDORS    AND    PURCUASERS.  [ciI.  V. 

own  name,  or  in  their  joint  names.  Even  if  there  was  an 
express  promise  to  the  husband,  the  wife  might  be  joined  as 
plaintiff.  But  a  feme  covert  cannot  be  joined,  in  an  action 
to  recover  the  price  of  property  sold  by  her,  and  which 
belonged  to  her  before  coverture,  or  unless  there  be  an 
express  promise  of  payment  to  her.' 

16.  A  baker  was  desirous  of  disposing  of  his  shop  and 
the  good-will  of  his  business,  and  in  consequence  an  adver- 
tisement was  inserted  in  a  newspaper,  stating  that  the  house 
was  doing  twelve  sacks  a  week.  The  advertisement  was 
inserted  by  the  broker,  in  consequence  of  a  conversation  with 
the  baker's  wife,  who  managed  the  business  for  him,  in  which 
conversation  she  told  the  broker  that  they  3id  between  nine 
and  ten  sacks  a  week,  upon  whidi  he  said,  "  We  must  make 
it  twelve  for  the  paper."  In  consequence  of  the  advertise- 
ment, a  person  desirous  of  purchasing  went  to  the  wife  and 
said  to  her,  "  Are  you  really  doing  any  thing  like  this  busi- 
ness ? "  to  which  she  replied,  "  Yes,  we  are  doing  eleven 
sacks,"  and  appealed  to  the  man  in  the  shop,  who  confirmed 
her  statement.  The  baker  himself  did  not  appear  at  all  in 
any  part  in  the  transaction,  except  that  he  received  the  pur- 
chase money,  and  paid  the  broker  his  commission.  In  an 
action  brought  by  the  purchaser  on  the  representation  con- 
tained in  the  advertisement,  it  was  held,  that  the  baker  was 
personally  and  individually  answerable  in  damages,  inasmuch 
as  though  he  did  not  make  any  representation  himself,  yet 
he  made  the  wife  his  agent,  and  was  bound  by  her  state- 
ments.2 

17.  A.,  the  wife  of  a  banlvrupt,  who  was  abroad,  without 
his  consent,  or  a  legal  ratification  by  herself,  conveyed  her 
own  lands  to  trustees  under  his  sequestration.  Upon  a  sala|k 
of  these  lands  by  public  roup,  the  vendor,  by  the  articles  of 
roup,  undertakes  to  execute  to  the  purchaser  a  valid,  irre- 
deemable disposition  of  the  subjects,  as  described  in  his  own 

'  Higdon  V.  Thomas,  1  Harr.  &  Gill,  -  Taylor  v.  Green.  8  Carrington  & 
139.  Payne,  316. 


CII.  v.]  PARTIES   TO    CONTRACTS.  59 

or  constituent's  title  thereto  ;  also  to  deliver  certain  specified 
deeds,  &lc.,  described  as  "  all  the  title-deeds  of  the  property 
in  his  custody."  Upon  a  suit  by  the  vendor  for  the 
purchase-money,  and  a  proceeding  for  suspension  by  the 
vendee ;  held,  it  is  not  such  a  title  as  a  purchaser  is  bound 
to  accept,  and  that  the  title  is  not  limited  by  the  terms  of 
the  articles.^ 

18.  A  married  woman,  with  the  concurrence,  and  in  the 
presence  of  her  husband,  signed  an  agreement  in  writing  to 
grant  a  lease ;  all  parties  believing  that  she  was  entitled  to 
two  thirds  of  the  property  for  her  separate  use,  and  that  the 
remaining  one  third  belonged  to  her  brother  in  India,  whose 
concurrence  it  was  represented  that  she  could  procure.  It 
was  soon  afterwards  discovered,  that  the  wife  was  entitled 
to  one  fourth  only  for  her  separate  use,  to  another  fourth 
absolutely ;  that  another  fourth  had  belonged  to  her  deceased 
sister;  and  that  the  remaining  fourth  belonged  to  the  brother. 
The  fourth  which  had  belonged  to  the  sister  was  purchased 
by  the  husband  soon  after  this  discovery.  Upon  a  bill  for 
specific  performance  against  husband  and  wife ;  held,  there 
could  be  no  decree  against  her  in  personam  ;  and  her  agree- 
ment did  not  bind  the  husband,  as  to  the  interests  in  the 
property  which  he  had  at  the  date  of  the  agreement,  or  which 
he  afterwards  acquired.'-^ 

19.  Contracts  for  the  sale  and  purchase  of  lands  are  some- 
times brought  in  question,  after  the  death  of  the  contracting 
parties.  Thus,  such  a  contract  may  be  enforced,  though,  by 
reason  of  the  vendee's  death,  the  execution  of  bonds  and  a 
mortgage  required  by  the  contract  is  impossible,  as  the  heir& 
or  residuary  legatees  may  carry  it  out.     But,  it  is  said,  in 

•  case  of  the  death  or  bankruptcy  of  the  purchaser,  it  perhaps 
may  be  optional  with  the  seller  to  rescind  the  contract,  or  to 
demand  specific  performance  ;  and,  if  the  defendants  are 
unable  or  unwilling  to  perform,  perhaps  the  estate  may  be 
sold,  and  the  defendants  ordered  to  pay  any  difference  in  the 

1  Dick  V.  Donald,  1  Bligh.  N.  S.  655.      -  Aylett  v.  Asliton,  1  Myl.  &  Cra.  105. 


60  LAW   OF   VENDORS    AND   PURCHASERS.  [cil.  V. 

amount  of  the  purchase-moneyJ  So,  it  is  held,  that,  to 
enforce  specific  performance  of  a  parol  sale  of  land  by  one 
deceased,  the  precise  terms  must  be  proved.  The  vendef^ 
must  also  have  taken  exclusive  possession  in  pursuance  of 
the  contract,  and  in  the  lifetime  of  the  vendor.^ 

20.  If  the  obligee  has  fulfilled  his  part  of  the  contract,  his 
administrator  may  sue  for  a  breach,  though  the  purchase- 
money  has  not  been  paid.^ 

21.  An  averment  in  a  declaration,  that  a  vendor  has  power 
to  sell,  as  executor,  is  sufficient,  without  an  allegation  that 
the  title  of  his  testator  is  good.* 

22.  A.  made  a  writing,  in  these  words,  signed  by  himself : 
"  This  is  to  certify  that  I  engage  to  my  son  B.  the  farm  on 
which  he  now  lives,  and,  should  Providence  determine  other- 
wise, he  is  to  receive  of  my  estate  $1,000, — $500  for  the 
improvements  made  on  the  farm  on  which  my  son  C.  lives, 
and  $500  for  money  to  be  paid  to  D.,  widow  of  my  deceased 
son."  After  the  death  of  A.,  B.  brought  assumpsit  against 
A.'s  executor,  alleging  that  A.,  by  the  contract,  promised  to 
give  to  B.  the  farm,  and,  should  Providence  determine  other- 
wise, that  B.  should  receive  from  A.'s  estate  $1,000;  and  that 
A.  did  not  give  the  farm  to  B.,  but  that  he  gave  and  devised 
it  to  C.  Held,  the  writing  was  an  intelligible  and  valid  con- 
tract, and  the  action  could  be  maintained.^ 

23.  Where  a  bond  for  conveyance  has  been  given,  and, 
after  the  death  of  the  obligor,  his  administrator  executes  a 
deed,  by  virtue  of  the  statute  of  North  Carolina,  any  equit- 
able defence  against  the  bond  may  be  set  up  against  the 
deed.6 

24.  The  decree  of  a  court  of  competent  jurisdiction,  order- 
ing an  administrator  to  convey  title  to  land,  which  decree  • 
purports  to  be  founded  on  a  title-bond  executed  by  the  intes- 
tate, is  evidence  that  he  did  execute  it.'^ 

1  Tiernan  v.  Roland,  15  Penn.  429.  ^  Rue  v.  Rue,  1  New  Jersey,  369. 

'■*  Sage  V.  M'Guire,  4  Watts  &  Serg.  ^  McCraw  v.  Gwin,  7  Ired.  Eq.  55. 

228    229.  "  Holt   v.   Clemraons,  3  Texas,  423. 

3 'Allen  V.  Greene,  19  Ala.  34.  See  Holt  v.  Payne,  3  Texas,  478. 
*  Adams  v.  M'Millan,  7  Porter,  73. 


CH.  v.]  PARTIES   TO   CONTRACTS.  61 

25.  In  a  suit  for  title,  on  such  bond,  it  is  not  essential  to 
the  validity  of  the  decree,  or  the  title  executed  under  it,  that 
the  heirs  of  the  intestate  should  have  been  made  parties.' 

26.  The  owner  of  land  declared  in  writing,  that  he  held 
the  same  in  trust  for  A.,  his  heirs,  and  assigns,  subject  to  his 
own  lien  for  advances  thereon,  and  that  he  was  to  convey 
and  would  convey  to  A.,  or  his  representatives,  upon  reim- 
bursement of  his  advances.  A.  having  died,  one  of  his 
creditors  took  out  letters  of  administration,  invejitoried  his 
interest  in  the  land,  and,  under  a  license  from  the  Probate 
Court,  sold  and  conveyed  the  same  for  payment  of  debts. 
The  administrator  subsequently  purchased  the  interest  so 
sold  of  such  purchaser,  received  a  conveyance  thereof,  and 
then  brought  his  bill  in  equity  against  the  trustee,  for  a 
conveyance  upon  paying  the  advances  thereon.  Held,  the 
plaintiff  might  maintain  his  bill  as  the  representative  of  A., 
if  not  in  his  own  individual  right.^ 

27.  The  heirs  of  a  vendor,  though  not  named  in  the  con- 
tract, and  whether  adult  or  infant,  are  bound,  and  may  be 
compelled  to  execute  it,  to  the  extent  of  their  assets.^  But, 
in  New  York,  generally,  the  heir  will  not  be  compelled  to 
enter  into  personal  covenants,  in  fulfilment  of  the  ancestor's 
contract.* 

28.  Bill  for  specific  performance  of  a  contract  to  convey, 
against  the  heirs  of  the  vendor,  one  of  whom  was  an  infant. 
The  contract  stipulated  for  a  good  and  sufficient  deed,  free 
of  all  incumbrances,  but  did  not  name  the  heirs.  The 
vendor  left  a  widow.  Held,  the  infant  was  bound  to  con- 
vey, without  covenants,  and  the  other  heirs  with  covenants 
against  their  own  acts,  on  payment  of  the  stipulated  price, 
deducting  from  each  payment  a  proportionate  share  of  the 
value  of  the  dower.^ 

29.  A  parol   agreement  for  the  sale  of  land  will  not.be 

i  Holt  V.  Clemmons,  3  Texas,  423.        ^  Hill  v.  Ressegien,  17  Barb.  162. 
See  Holt  v.  Payne,  3  Texas,  478.  *  Ibid. 

2  Dumphe  v.  Hay  ward,  2  Cush.  429.        ^  Ibid. 

6 


62  LAW   OF  VENDORS   AND   PURCHASERS.  [CII.  V. 

enforced  specifically  against  the  heir  of  the  vendor,  though 
he  had  given  instructions  in  writing,  stating  the  terms,  to  an 
attorney,  to  draw  the  deeds.' 

30.  The  heirs  of  a  vendee,  who  had  a  parol  contract  for 
800  acres  of  land,  and  had  paid  the  whole  price,  sold  and 
conveyed  100  acres  to  the  complainant.  Held,  he  could  not 
compel  the  heirs  of  the  vendor  to  convey  to  him  the  100 
acres.2 

31.  When  a  bond  for  title  shows  that  the  title  is  in  a 
stranger,  from  whom  the  obligor  does  not  procure  a  convey- 
ance to  the  obligee,  nor  himself  obtain  it ;  the  obligee's  heir 
does  not  inherit  the  land,  nor  can  he  maintain  a  suit  upon 
the  bond  in  his  own  name,  whether  a  breach  of  it  occurred 
before  or  after  the  obligee's  death.^ 

32.  If  a  vendor  leaves  several  heirs,  one  of  whom  is  a 
minor,  the  purchaser  is  not  bound  to  accept  a  deed  from  the 
adult  heirs,  and  a  bond  of  the  guardian  of  the  minor  with 
surety,  conditioned  for  the  minor's  conveyance  when  he  shall 
come  of  age.*  -  So,  in  a  suit  demanding  specific  performance 
of  a  contract,  by  conveying  lands  in  Ohio,  stipulated  to  be 
conveyed  as  the  consideration  for  other  lands  sold  in  Ken- 
tucky, or,  in  lieu  thereof,  requiring  indemnification  by  the 
payment  of  money ;  held,  all  the  co-heirs  of  the  vendor,  de- 
ceased, ought  to  be  made  parties  to  the  bill,  or  the  death  of 
one  of  them  not  a  party  ought  to  be  proved.^  But,  where 
a  vendor  dies  before  performance  of  the  contract,  leaving  an 
only  child  as  his  heir,  who  is  a  lunatic ;  equity  may  decree  a 
specific  performance,  and  direct  the  committee  of  the  lunatic 
to  execute  all  necessary  conveyances.^ 

33.  A  bond  by  an  administrator  to  convey  real  estate  of 
his  intestate,  in  contemplation  of  a  sale  under  a  surrogate's 
order,  is  void.'^     So,  if  commissioners  for  selling  the  real 

1  Givens  v.  Calder,  2  Desaus.  171.  ^  Morgan  v.  Morgan,  2  Wheat.  290. 

2  Lord  V.  Underdunck,  1  Sandford,        ^  Swartwout  v.  Burr,  1  Barb.  495. 
46,  48.  7  Herrick  v.  Grow,   5  Wend.    579 ; 

3  Allen  V.  Greene,  19  Ala.  34.  M'Dermed  v.  M'Cartland,  Hardin,  18. 
*  Barickraan  v.  Kuykendall,  6  Blackf. 

21. 


CII.  v.]  PARTIES   TO    CONTRACTS.  63 

estate  of  one  deceased  give  a  bond,  conditioned  to  make  or 
cause  to  be  made  a  title  in  fee  simple,  which  exceeds  their 
authority,  and  fail  to  bind  the  estate  of  the  deceased ;  they 
are  bound  personally.^ 

34.  Questions  have  sometimes  arisen,  in  reference  to  the 
liability  of  trustees  and  cestuis  que  trust.  Thus,  the  owner  of 
an  estate  having  agreed  with  the  cestui  que  trust  of  an  adjoin- 
ing estate,  to  build  a  new  partition  wall  between  them,  in 
place  of  the  wall  then  standing,  for  the  benefit  of  both,  and 
having  built  the  same  accordingly,  on  a  promise  by  the  latter 
that  he  would  pay  for  one  half  of  the  wall,  if  at  any  future 
time  he  should  have  occasion  to  use  it  for  any  other  purpose 
than  that  for  which  the  old  one  was  then  used  ;  the  trustees 
of  the  last-mentioned  estate  subsequently  sold  and  conveyed 
the  same,  without  making  any  mention  of  the  partition  wall, 
but  with  the  consent  of  the  cestui  que  trust,  signified  by  his 
signing  and  sealing  the  deed  ;  and  the  purchaser  subse- 
quently made  use  of  the  wall  for  a  different  purpose  from 
that  for  which  the  old  one  was  used.  Held,  the  agreement 
on  the  part  of  the  cestui  que  trust  was  merely  personal,  and 
his  assent  to  the  deed  was  not  a  use  of  the  ivall  by  him, 
within  the  meaning  of  his  agreement.^ 

35.  Questions  have  also  arisen  from  the  alienage  of  a  pur- 
chaser of  real  estate,  and  his  consequent  inability  to  acquire 
an  indefeasible  title.  Upon  this  point,  it  has  been  held,  that 
alienage  of  the  vendee  will  not  entitle  the  vendor  to  a  decree 
for  rescinding  the  sale,  though  it  may  afford  a  reason  for 
refusing  specific  performance,  as  against  the  vendee.^  But, 
if  the  parties  have  not  an  adequate  remedy  at  law,  the  ven- 
dor may  be  considered  as  a  trustee,  for  purchasers  under  a 
sale  by  order  of  Court  for  the  benefit  of  the  vendee.* 

36.  But,  with  regard  to  the  parties  to  a  contract  for  the 
sale  and  purchase  of  lands,  the  questions  most  frequently 
Arising  are  those  which  grow  out  of  the  relation  oi  principal 

'  Whiteside  v.  Jennings,  19  Ala.  784.  ^  Hepburn  v.  Dunlap,  1  Wheat.  179. 

2  Jenkins  v.  Spooner,  5  Cush.  419.  *  Ibid. 


64  LAW    OF   VENDORS    AND    PURCHASERS.  [CII.  V. 

and  agent.  Of  course,  the  most  important  inquiry  under  this 
head  is,  the  existence  and  source  of  the  authority  to  act  for 
one  person,  which  is  claimed  and  exercised  by  another.  And 
the  principle  seems  well  settled,  that,  although  contracts  for 
the  sale  and  purchase  of  lands  must  themselves  be  in  writ- 
ing, yet  verbal  authority  to  an  agent  to  sell  lands  is  suf- 
ficient.' [a)  But  verbal  directions  to  an  agent,  who  has  a 
power  of  attorney  to  convey  lands,  can  neither  give  new 
authority  to  convey,  nor  enlarge  that  contained  in  the 
power.2 

37.  An  authority  to  sell  and  convey  lands  for  cash  includes 
the  right  to  receive  the  purchase-money .^  So,  where  A.  en- 
gaged B.  tb  hire  a  certain  piece  of  land  for  him,  at  a  certain 

1  Johnson  v.  M'Gruder,  15  Mis.  365;         -  Spofford  v.  Hobbs,  29  Maine,  148. 
Coleman   v.  Garsigues,    18  Barb.   60;        ^  Johnson  «;.  M'Gruder,  15  Mis.  365. 
Marston  v.  Koe,  8  Ad.  &  Ell.  14. 


(a)  But  the  signing,  sealing,  and  delivery  of  a  deed  by  an  agent  will  not 
be  valid,  unless  authorized  by  an  instrument  under  seal,  or  done  in  the 
actual  presence  of  the  principal.  Kime  v.  Brooks,  9  Ired.  218.  And  the 
principle  stated  in  the  text  has  not  been  uniformly  recognized.  Thus,  it  has 
been  held,  that  the  power  of  an  agent  to  re^it  lands  must  be  proved  by  other 
testimony  than  his  own.  If  there  is  a  written  power,  it  should  be  produced ; 
if  it  is  burnt  or  lost,  the  contents  should  be  proved.  Neither  shall  the  agent's 
leasing  for  some  years  and  collecting  the  rents,  and  the  acquiescence  of  the 
owner,  be  presumptive  proof  of  the  power.    Meredith  v.  Macoss,  1  Yea.  200. 

A  question  arose,  whether  the  defendant  had  given  a  written  authority  to 
one  A.  to  dispose  of  certain  premises  which  the  plaintiff  alleged  he  had  bought 
under  that  authority.  To  prove  that  a  written  authority  was  given,  but  had 
been  mislaid,  the  plaintifi"  offered  A.  as  a  witness.  Held,  he  was  not  com- 
petent, unless  the  contents  of  the  writing  were  proved  by  other  witnesses  ; 
and  then  he  might  be  allowed  to  show  how  he  had  executed  his  instructions. 
Nicholson  v.  Mifflin,  2  Dall.  246. 

So,  it  has  been  held,  that  a  sale  of  land  by  an  agent,  under  a  parol  au- 
thority, is  void ;  but,  if  the  sale  be  subsequently  affirmed  by  the  principal, 
he,  and  those  who  claim  under  him,  are  estopped  from  recovering  the  land 
in  ejectment,  even  though  a  deed  to  the  agent  himself,  under  which  he- 
undertook  to  sell,  was  forged.     Vanhorn  v.  Frick,  6  Serg.  &  R.  90. 

It  is  said,  a  parol  sale  by  an  agent  is  as  valid  as  a  parol  sale  by  a  principal. 
Ibid. 


CII.  v.]  PARTIES    TO    CONTRACTS.  65 

rent  or  at  any  rent ;  and  B.  effected  the  lease,  but  the  lessor, 
being  unwilling  to  give  credit  to  A.,  trusted  B.,  and  B.  paid 
the  rent ;  held,  this  was  a  general  agency,  the  payment  by  B. 
was  within  the  object  of  it,  and  A.  was  liable  to  an  action 
for  the  money  paid,  without  demand.^  But,  where  baron 
and  feme,  having  joint  power  to  sell  her  estate,  authorized 
an  agent  to  sell  by  auction,  and  he  sold  by  private  contract 
for  more  than  the  price  they  required  ;  held,  the  buyer  could 
not  compel  specific  performance.- 

38.  A  power  of  attorney  to  sell  lands,  "  for  the  purpose  of 
making  actual  settlements  thereon,"  and  "  to  sign,  seal,  and 
deliver  sufficient  deeds,  conveying  the  land  in  fee  simple, 
with  the  several  covenants  and  a  general  warranty  ; "  leaves 
it  to  the  judgment  of  the  attorney  to  determine,  whether  the 
purchasers  buy  for  this  purpose,  and,  in  the  absence  of  fraud, 
the  conveyance  will  be  valid,  although  the  land  was  pur- 
chased, not  for  settlement,  but  on  speculation.-' 

39.  A  land-broker,  having  authority,  if  he  could  sell  land 
for  cash  on  delivery  of  the  deed,  "to  close  the  bargain," 
signed  an  agreement  in  the  name  oithe  principal,  to  sell 
the  land  for  the  sum  fixed  in  cash  on  delivery  of  the  deed, 
and  also  that  the  principal  should  give  a  warranty  deed,  with 
full  covenants  and  a  perfect  title  at  any  time  on  demand 
within  thirty  days.  Held,  the  principal  was  not  bound,  the 
express  authority  being  merely  "  to  close  the  bargain,"  and 
not  involving  the  right,  in  case  of  lands,  to  sign  a  contract ; 
and  the  general  agency  of  land-brokers  not  being  any  more 
extensive.* 

40.  Where  a  power  of  attorney  authorized  the  agent  "  to 
contract  for  the  sale  of,  and  to  sell,  either  in  whole  or  in  part, 
the  lands  and  real  estate  so  purchased,"  and  "  on  such  terms 
in  all  respects  as  he  shall  deem  most  advantageous,"  and 
"  to  execute  deeds  of  conveyance  necessary  for  the  full  and 
perfect  transfer  of  all  our  respective  right,  title,  &c.,  as  suf- 

1  Irions  v.  Cook,  11  Ired.  203.  «  Spoftord  v.  Hobbs,  29  Maine,  148. 

2  Daniels  v.  Adams,  Ambl.  495.  *  Coleman  v.  Garrigues,  18  Barb.  60. 

6* 


66  LAW    OF   VENDORS    AND    PURCHASERS.  [CII.  V. 

ficiently  in  all  respects  as  we  ourselves  could  do  personally 
in  the  premises ; "  held,  that  these  expressions,  aided  by  the 
situation  of  the  parties  and  the  property,  the  usages  of  the 
country,  the  acts  of  the  parties  themselves,  and  any  other 
circumstances  having  a  legal  bearing  upon  the  question,  gave 
to  the  agent  the  power  to  enter  into  a  covenant  of  seizin.^ 
[McLean,  J.,  dissenting.] 

41.  A  proprietor  of  lands,  who  had  sold  lots  for  which  the 
pay  was  still  due,  and  contracted  to  sell  others,  granted  a 
power,  "  to  collect  and  receive  all  sums  of  money  due  to  him 
for  said  lands  from  purchasers,  and  to  execute  all  such  con- 
tracts as  the  sales  may  require."  Held,  the  power  did  not 
authorize  new  contracts  for  the  sale  of  other  lands.^ 

42.  A  contract,  by  which  a  right  of  preemption  is  given  to 
a  party  for  a  certain  time,  at  a  fixed  price,  on  a  ho7id  fide 
expectation  that  he  may  become  a  purchaser,  will  not  con- 
stitute him  an  agent  of  the  vendor,  although  he  sells  his 
interest  in  the  contract  at  an  advanced  price  before  the  expi- 
ration of  the  term.  Rut  if  the  right  of  preemption  is  given, 
not  with  an  expectation  that  the  party  will  become  a  pur- 
chaser, but  solely  for  the  purpose  of  enabling  him  to  make 
sale  of  the  thing,  and  to  get  his  compensation  in  the  advanced 
price,  this  will  render  him  the  agent  of  the  owner,  and  the 
owner  responsible  for  his  acts.^ 

43.  Under  a  power  to  "  mortgage  or  convey  for  the  pay- 
ment of  debts,"  the  property  may  be  conveyed  to  a  trustee, 
with  authority  to  sell  for  the  satisfaction  of  debts.* 

44.  Where  a  person  for  himself,  and  as  agent  for  another, 
purchases  land  on  their  joint  account,  but  for  a  higher  price 
than  he  is  authorized  to  pay,  but  without  any  collusion  with 
the  vendor,  or  knowledge  on  the  part  of  the  vendor  that  he 
is  exceeding  his  authority ;  the  other  purchaser  must  either 
wholly  adopt  or  wholly  repudiate  the  transaction.^  But 
where  an  agent,  holding  a  power  of  attorney  to  sell  lands, 

1  Le  Roy  v.  Beard,  8  How.  U.  S.  451.         *  Gimell  v.  Adams,  11  Humph.  283. 

2  Calcf  V.  Foster,  32  Maine,  92.  &  Crawford  v.  Barkley,  18  Ala.  270, 
^  Mason  v.  Crosby,  Daveis,  303. 


CU.  v.]  PARTII':3   TO    CONTRACTS.  67 

makes  a  conveyance  not  authorized  by  the  power,  the  taking 
back  of  a  mortgage  and  notes,  neither  of  which  contain  any 
specific  reference  to  the  deed,  nor  any  thing  inconsistent  with 
the  attorney's  want  of  authority,  and  the  receiving  by  the 
principal  of  the  ;noney  paid  upon  the  notes,  will  not  operate 
as  a  ratification  of  the  conveyance,  nor  as  an  estoppel  from 
denying  the  validity  of  the  deed.^ 

45.  An  act,  authorizing  the  auditor  to  rescind  contracts  for 
the  purchase  of  lots,  where  none  of  the  purchase-money  had 
been  paid,  and  he  was  satisfied  that  the  purchasers  and  their 
sureties  were  insolvent ;  applied  only  to  the  cases  expressly 
specified,  and  did  not  authorize  the  auditor  to  cancel  a  con- 
tract for  a  lot,  the  purchaser  of  which  was  not  insolvent,  and 
■^ose  note  was  not,  at  the  date  of  the  rescission,  the  prop- 
erty of  the  State.2 

46.  A  purchaser  alleged,  by  his  answer  to  a  suit  for  specific 
performance,  that  he  acted  as  a  puffer  in  bidding  for  one  lot, 
and  also  for  another  lot,  which  was  knocked  down  to  him  ; 
and  that  he  therefore  purchased  the  lot,  and  signed  the  agree- 
ment for  the  purchase,  as  the  agent  of  the  vendor ;  but  the 
statement,  in  his  depositions,  of  the  circumstances  attending 
the  signature,  was  somewhat  different  from  that  in  his  answer, 
and  he  had  signed  an  order  on  his  attorney  for  payment  of 
the  deposit-money.  Held,  there  was  not  sufficient  evidence 
of  agency,  and  the  defendant  was  held  to  have  purchased  on 
his  own  account.^ 

47.  Questions  frequently  arise,  from  the  form  of  execution 
of  a  contract  made  by  an  agent,  as  to  the  respective  liabili- 

•ties  of  the  principal  and  agent.  Upon  this  subject,  the  gen- 
eral rule  is,  that  a  sealed  covenant  for  the  sale  of  land,  made 
by  an  attorney  in  fact,  must  be  executed  in  the  name  of  the 
principal  by  A.  B.,  his  attorney  ;  if  the  attorney  affix  only 
his  own  name,  the  covenant  is  void,  although  in  the  body  of 
the  instrument  it  be  stated  that  it  is  the  agreement  of  the 

1  Spofford  V.  Hobbs,  29  Maine,  148.  ^  Bennett  v.  Smith,  10  Eng.  Law  & 

2  The  State  v.  Mayes,  23  Miss.  516.  Eq  272. 


68  LAW    OF   VENDORS    AND    PURCHASERS.  [CII.  V. 

principal  by  A.  13.,  his  attorney,  tliat  the  principal  covenants, 
&c.,  and  in  the  in  testimonium  clause  that  A.  B.,  as  the  attor- 
ney of  the  principal,  hath  set  his  hand  and  seal.  The 
principals  not  being  bound,  the  other  party  is  discharged ; 
and  no  act  subsequently  done  by  the  covenantor  can  give 
validity  to  the  covenant  without  the  assent  of  the  covenantee. 
But  when  the  agent  as  such  does  an  act  in  pais,  though  in 
his  own  name,  or  enters  into  a  commercial  or  other  contract, 
not  under  seal,  without  subscribing  the  name  of  the  princi- 
pal, the  latter  is  bound  by  the  act  of  his  agent.^ 

48.  Although  a  title-bond,  executed  by  an  agent,  be  insuf- 
ficient to  bind  the  principal  at  law,  yet,  if  the  agent  were 
authorized  and  intended  to  bind  him,  a  specific  performance 
may  be  decreed  in  equity,  there  being  a  sufficient  note  (# 
memorandum  within  the  Statute  of  Frauds.^ 

49.  Two  tenants  in  common  of  a  tract  of  land,  which  was 
divided  into  two  lots,  having  put  the  same  up  for  sale  at 
auction,  one  of  them,  without  previous  knowledge  or  agree- 
ment of  the  other,  bid  off  and  became  the  purchaser  of  a  lot, 
through  an  agent,  who,  in  his  own  name,  but  declaring  that 
he  was  acting  therein  as  the  agent  of  such  purchaser,  signed 
a  memorandum,  acknowledging  to  have  purchased  such  lot, 
and  agreeing  to  comply  with  the  terms  of  sale.  In  a  bill  in 
equity,  by  the  other  tenant,  to  compel  his  co-tenant  to  receive 
a  deed  from  him  of  an  undivided  moiety  of  the  lot,  and  to 
pay  therefor  one  half  of  the  auction  price ;  held,  there  was 
no  sufficient  contract  in  writing,  or  memorandum  of  such 
contract.^ 

50.  A.  advertised  lands  to  be  let  for  three  lives  or  thirty-  # 
one  years.  B.  made  proposals  for  them,  which  were  accepted, 
and  an  agreement  executed,  between  B.  and  the  agent  of  A., 
in  which  the  term  was  not  mentioned.  Held,  A.  was  not 
bound  by  the  agreement.  Also,  there  being  no  reference  in 
the  agreement  to  the  advertisement,  that  parol  evidence  could 

1  Townscnd  v.  Corning,  23  Wcnrl.  ^  Johnson  v.  M'Grnder,  15  Mis.  365. 
435.  See  Wood  v.  Goodridge,  6  Ciish.  117. 

3  Gill  V.  Bicknell,  2  Gush.  355. 


CH.  v.]  PARTIES   TO   CONTRACTS.  69 

not  be  received  to  connect  the  one  with  the  other,  so  as  to 
ascertain  the  term.' 

51.  Bill  for  specific  performance.  One  of  the  defendants 
purchased  lands  at  auction,  declaring  himself  the  agent  of 
the  other,  in-  his  presence  ;  but  the  solicitor  of  the  vendor, 
the  plaintiff,  required  the  agent  to  sign  the  agreement,  and 
refused  to  accept  the  name  of  the  principal ;  but  subse- 
quently communications  took  place  between  him  and  the 
principal,  respecting  the  title.  •  Held,  the  plaintiffs  had  not 
substituted  the  principal  for  the  agent,  but  the  agent  was 
personally  liable.^ 

52.  On  sale  of  premises  by  auction,  the  memorandum  of 
the  mutual  agreement  was  signed  by  the  auctioneer,  as 
agent  for  the  purchaser,  and  by  the  vendor's  attorney,  sub- 
scribing himself  "  as  agent  for  the  said  S.  S.,"  the  vendor. 
The  purchaser  paid  his  deposit  to  the  attorney,  who  gave  a 
receipt  signed  by  himself  as  "  agent  for  S.  S."  The  sale 
going  off  through  the  vendor's  default,  and  the  deposit  not 
being  returned ;  held,  the  purchaser  could  not  bring  an  ac- 
tion of  money  had  and  received  against  the  attorney,  he  not 
being  a  stakeholder,  but  merely  the  vendor's  agent,  and  pay- 
ment of  the  deposit  to  him  being  payment  to  the  vendor.^ 

53.  The  highest  bidder  for  certain  lands  sold  by  auction, 
and  the  plaintiff,  the  mayor  of  a  corporation,  on  behalf 
of  himself  and  the  rest  of  the  burgesses  and  commonalty  of 
the  borough,  the  vendors,  signed  a  contract,  in  which  they 
mutually  promised  to  fulfil  the  conditions  of  sale  on  their 
respective  parts.  The  conditions  stated  the  title  of  the  cor- 
poration, and  stipulated  that  they  should  convey,  and  might 
resell  on  default.  The  only  act  therein  mentioned,  to  be 
done  by  the  plaintiff,  was  the  receiving  the  deposit.  Held, 
the  plaintiff  could  not  maintain  an  action  in  his  individual 
capacity  against  the  purchaser  for  breach  of  this  contract.* 

54.  One  party,  who  would  exonerate  himself  on  the  ground 

'  Clinan  v.  Cooke,  1  Scho.  &  L.  22.  ^  Bamford  ».  Shuttlewoeth,  4  Ad.  & 

-^  Chadwick  v.  Maden,  12  Eng.  L.  &     Ell.  926. 
Eq.  180,  *  Bowen  v.  Morris,  2  Taunt.  374. 


70  LAW    OF    VENDORS    AND    PURCHASERS.  [CII.  V. 

of  agency,  ought  to  show  that  he  communicated  it  to  the 
other,  and  acted  as  agent,  so  as  to  give  a  remedy  over 
against  his  principal.^ 

55.  The  defendant,  by  a  written  agreement,  expressed  to 
be  made  by  himself  on  behalf  of  A.  B.,  of  the  one  part,  and 
the  plaintiff  of  the  other  part,  stipulated  to  execute  a  lease 
to  the  plaintiff  of  premises  proved  to  belong  to  A.  B.  Held, 
the  defendant  was  personally  liable.- 

56.  An  alleged  principal,  though  not  originally  bound, 
may  so  ratify  a  sale  or  purchase,  as  to  become  liable  for  its 
completion.  And,  where  a  sale  made  by  an  agent  is  ratified 
by  his  principals,  the  agent's  representations,  made  at  the 
time  of  the  sale,  bind  his  principals.^ 

57.  Upon,  the  general  principle  which  governs  the  case  of 
trusts,  (see  Trust,)  the  law  does  not  permit  an  agent  to  act 
in  that  capacity  for  his  own  benefit,  or  to  appropriate  to 
himself  the  advantage  which  rightly  belongs  to  his  principal. 
Thus,  one  who  assumes  to  act  as  agent  in  redeeming  land 
sold  for  taxes,  and  obtains  a  title  in  his  own  name,  wiU  be 
held  to  answer  to  those  for  whom  he  has  assumed  to  act,  by 
a  bill  in  equity  for  an  account,  and  to  compel  a  reconvey- 
ance.^ So,  one  employed  to  bid  for  another  at  a  mortgage 
sale  of  land  cannot  purchase  it  himself,  nor  through  another, 
for  his  own  benefit.^  So,  if  an  agent,  appointed  to  sell  and 
convey  lands,  cause  part  of  them  to  be  conveyed  to  himself, 
upon  application  within  reasonable  time  by  the  heirs  of  the 
principal,  equity  wUl  order  a  reconveyance  to  them,  unless 
the  principal  had  ratified  the  sale.*^ 

58.  An  agent  having  purchased  the  property  of  his  princi- 
pal at  a  sheriff's  sale,  the  Circuit  Chancellor  refused  to  set 
aside  the  purchase,  but  ordered  that  he  account  for  "  the  true 
value"  of  the  property.  Held,  this  meant  the  true  value  at 
the  time  of  sale." 

'  Maiire  v.  Hcff'erman,  13  Johns.  58.         *  Scheddaw.  Sawyer,  4  McLean,  181 ; 
2  Norton  n.Herron,  Ey.  li  M.  229.         Matthews  v.  Light,  32  Maine,  305. 
'^  Doggett  V.  Emerson,  3  Story,  C.  C.        ^  Moore  v.  Moore,  1  Seld.  256. 
700.  6  Sturdevant  v.  Pike,  1  Cart.  277. 

'  Eaness  v.  Wall,  5  Rich.  Eq.  143. 


CH.  v.]  PARTIES   TO   CONTRACTS.  71 

59.  The  rule  in  question  more  especially  applies,  where  a 
party  combines  the  characters  of  trustee  and  agent  for  his 
fellow-trustees.  Thus,  a  purchaser,  (being  a  trustee,  acting 
on  behalf  of  himself  and  others,  his  co-trustees,  and  of  the 
cestui  que  trusts,)  was  ordered  to  pay  the  purchase-money 
into  Court ;  the  agreement  having  been  entered  into  in  the 
name  of  himself  alone ;  upon  affidavits,  that  the  plaintiffs 
(the  vendors)  had  no  notice  of  his  acting  for  others,  and  of 
acts  of  ownership  committed  since  possession  given  to  him 
under  the  agreement ;  in  opposition  to  the  answer,  alleging 
notice  and  denying  any  acts  of  ownership  by  himself,  or  by 
any  other  person,  to  his  knowledge.^ 

1  Crutchley  v.  Jervingham,  2  Merivale,  502. 


72 


LAW  OF  VENDORS  AND  PURCHASERS. 


[CH.  VI. 


CHAPTER  VI. 


SALES   BY   AUCTION. 


1 .  Forms  of  sale. 

2.  What  is  an  auction ;  effect  of  a 
bid ;  separate  estates ;  letting  by  auction. 

12.  Puffing. 

24.  Combination  of  purchasers,  to 
reduce  the  price. 


33.  Rights  and  duties  of  an  auction- 
eer. 
42.  Statute  of  Frauds. 
50.  Parol  evidence. 
53.  Deposit. 


1.  In  the  natural  succession  of  topics,  we  now  propose  to 
consider  in  what  form  contracts  for  the  sale  and  purchase  of 
lands  are  required  by  law  to  be  made.  There  is,  however,  a 
particular  class  of  sales,  to  which  the  general  rules  upon  this 
subject  do  not  directly  apply,  and  which  may  therefore  be 
more  properly  treated  of,  before  proceeding  to  a  statement  of 
those  rules,  to  wit,  Sales  at  Public  Auction,  [a)  These  have 
become  so  frequent  and  important  a  mode  of  disposing  of 
real  estate,  and  are  at  the  same  time  so  distinguishable  in 
form  and  effect  from  mere  private  transfers,  as  to  have  called 
for  the  establishment  of  a  set  of  legal  principles  quite  pe- 
culiar to  themselves,  and  of  great  practical  consequence. 
Auctioneers  being  also  agents^  the  subject  naturally  follows 
that  of  a  sale  and  purchase  by  agents,  which  was  considered 
in  the  last  chapter. 

2.  An  auction  is  defined,  as  "  a  public  sale  of  property  to 
the  highest  bidder."  ^     It  may  be  by  public  outcry  or  other- 

1  1  Boun.  Law.  Diet.  141. 


(a)  In  many  cases,  this  is  the  only  lawful  mode  of  sale.  Thus,  an  agent 
or  trustee,  simply  authorized  to  sell  by  public  auction  for  a  certain  sum, 
cannot,  for  any  price,  sell  at  private  sale.  Daniel  v.  Adams,  Ambl.  495  ;  8 
Jur.  206. 


CH.  YT.]  SALES   BY   AUCTION.  73 

wise,  (a)  The  essential  part,  is  the  selection  of  a  purchaser 
from  a  number  of  bidders.  But  questions  have  sometimes 
arisen,  as  to  the  precise  elements  necessary  to  constitute  this 
peculiar  description  of  contract. 

3.  Th6  plaintiff,  an  auctioneer,  was  employed  to  sell 
lands,  &c.,  subject  to  the  following  (among  other)  conditions 
of  sale  :  1.  "  That  the  vendors  having  caused  a  notice  tp  be 
delivered  to  the  auctioneer,  authorizing  one  A.  to  bid  for  the 
premises  mentioned  in  a  certain  particular,  the  same  should 
not  be  considered  as  sold,  unless  the  price  bid  by  any  other 
person  or  persons  should  exceed  the  sum  bid  by  the  said  -4." 
2.  "  That  the  purchaser  of  each  lot  should  pay  to  the  auc- 
tioneer the  duty  granted  to  his  Majesty  on  the  sale  of  real 
estates,  over  and  above  the  purchase-money  for  each  lot." 
The  conditions  were  read  by  the  plaintiff,  in  the  hearing  of 
the  defendant,  a  bidder.  Defendant  bid  <£4,000  for  a  lot, 
which  bidding  was  then  taken  down  by  the  plaintiff  in  his 
catalogue,  ivithout  adding  the  name  of  the  defendant.  The 
plaintiff  postponed  the  sale,  and  went  to  other  lots,  saying 
aloud,  he  did  so,  "  to  give  gentlemen  time  to  consider."     In 


(o)  A  woman  remained  silent  during  the  -whole  time  of  a?ale,  but  oave  a 
glass  of  brandy  to  every  bidder;  and,  upon  the  breaking  up  of  the  sale,  the 
person  receiving  the  last  glass  was  taken  aside  and  declared  the  purchaser. 
Held,  an  auction.     1  Dow.  115. 

At  an  auction  sale,  the  vendor  invited  each  bidder  to  put  two  sums  upon 
a  slip  of  paper,  and,  on  comparison,  the  highest  bidder  to  be  declared  the 
purchaser  at  the  lowest  of  his  sums,  if  exceeding  the  highest  bid  of  any  other 
person.  Held,  an  auction,  under  St.  19,  Geo.  IH.  ch.  56,  and  the  penalty 
incurred  for  selling  without  license,  though  the  purchase  was  never  com- 
pleted.    Rex  V.  Taylor,  McLel.  362.     (p.  74,  n.) 

The  agent  of  the  owner  of  an  estate  put  it  up  at  auction,  first  in  a  num- 
ber of  lots  at  certain  prices.  No  bid  being  obtained,  he  offered  it  in  a 
smaller  number  of  lots,  at  other  prices.  Still  obtaining  no  bid,  he  withdrew 
the  property.  Held,  this  was  not  a  bidding  of  the  owner  by  his  agent,  which 
subjected  the  party  to  payment  of  a  duty,  for  want  of  notice  to  the  auc- 
tioneer of  his  agency.  The  upset  price  was  merely  the  tennimis  from  which 
a  bidding  commenced.     Cruso  i'.  Crisp,  3  E.  337. 


74  LAW    OF    VENDORS   AND   PURCHASERS.  [cil.  VI. 

less  than  an  hour,  he  declared,  in  defendant's  hearing,  that 
he  was  going  back  to  the  lot,  and  to  defendant's  bidding, 
that  it  was  an  open  sale  as  to  the  same  lot,  and  that  he  would 
give  two  minutes  time  to  consider ;  and  unless  there  was  an 
advance,  he  would  knock  it  down  to  the  defendant  at  £4,000. 
The  defendant  then  said,  but  not  so  loud  as  to  be  heard  by 
the  plaintiff,  that  he  would  not  have  it.  There  being  no 
advance,  the  lot  was  knocked  down  to  the  defendant ;  who 
thereupon  refused  to  complete  the  purchase,  or  to  sign  a 
memorandum.  A.  had  made  no  bidding.  Held,  assumpsit 
did  not  lie  to  recover  the  auction  duty,  which  the  plaintiff 
had  paid  to  the  crown,  against  the  defendant,  as  purchaser, 
or  as  highest  bidder,  or  as  a  hig-her  bidder  than  A.,  according 
to  the  condition  of  sale.' 

4.  The  agent  of  the  owner  of  an  estate,  to  be  sold  at 
auction,  attends  at  the  place  and  time  of  sale  ;  mentions  the 
upset  price,  but  not  bidders ;  and  gives  notice  that  he  will  be 
ready  to  treat  for  a  sale  by  private  bargain.  Soon  after,  he 
is  called  into  a  private  room  by  some  of  those  who  attended 
at  the  public  meeting,  and  they  give  him  offers  in  writing. 
He  engages,  before  inspecting  the  offers,  that  the  highest 
offer  shall  be  accepted  ;  and  it  is  accepted  accordingly. 
Held,  that  where  the  contract  is  with  various  persons,  with 
an  engagement  to  let  the  highest  bidder  be  the  purchaser,  or 
to  accept  the  highest  offer,  it  is  a  sale  at  auction  for  the  pur- 
poses of  the  act,  of  17th  Geo.  HI.  c.  50,  and  19th  Geo.  HI. 
c.  56.2  (^) 

'  Jones  V.  Naunev,  McClelland,  25.  -  Walker    v.    Advoeate-General,    1 

Dow.   111. 

(a)  A  sale  was  appointed  for  two  certain  days,  by  public  advertisement, 
for  the  disposal  of  a  house  and  furniture ;  but,  some  of  the  furniture  not 
being  then  sold,  an  announcement  was  made  to  the  company  assembled,  that 
at  a  future  day  then  named  for  that  purpose,  the  whole  of  the  remainder 
would  be  sold.  The  persons  who  attended  upon  the  second  occasion,  and 
were  desirous  of  purchasing,  were  directed  to  retire  to  another  room,  where 
each  was  to  write  two  difierent  sums  on  a  piece  of  paper ;  and,  whoever 
should  be  found,  on  giving  in  those  pieces  of  paper,  to  have  written  the 


CII.  VI.]  SALES   BY   AUCTION.  75 

5.  By  the  General  Turnpike  Act,  the  trustees  were  em- 
powered to  let  the  tolls  by  auction  ;  but,  to  prevent  undue 
preference,  a  minute-glass  was  to  be  turned  thrice  after  each 
bidding ;  and  if  no  other  person  bid,  the  last  bidder  to  be 
the  farmer  or  renter.  Trustees  under  this  act  put  up  tolls 
subject  to  other  conditions,  one  of  which  was,  that,  unless 
there  should  be  three  biddings,  there  should  be  no  letting, 
unless  the  trustees  thought  proper  to  take  less  than  three 
biddings,  and  that  they  should  have  a  reserved  bidding.  The 
plaintiff  made  the  only  bid  ;  whereupon  the  trustees  declared, 
that,  if  there  was  no  advance,  they  should  be  obliged  to 
make  a  reserved  bidding.  The  minute-glass  was  turned 
thrice,  and  there  was  no  further  bidding.  The  plaintiff  filed 
his  bill  for  specific  performance,  but  the  bill  was  dismissed, 
without  costs.^ 

6.  A  testator  directed  by  his  will,  that  his  land  should  be 
sold  at  auction.  It  was  accordingly  advertised  for  sale,  and 
A.  offered  by  letter  a  certain  sum,  and  no  other  person  bid 
as  much,  and  the  land  was  afterwards  conveyed  to  A.  Held, 
a  sale  at  auction.^ 

7.  Upon  the  point,  at  what  particular  time  a  sale  by  auc- 
tion is  completed  ;  it  is  held,  that  a  bidder  at  an  auction 
under  the  usual  conditions,  that  the  highest  bidder  shall  be 
the  purchaser,  may  retract  his  bidding  any  time  before  the 
hammer  is  down.^  But  where  one  bids,  at  auction,  though 
for  another,  but  does  not,  at  the  time  the  lot  is  knocked 
down  to  him,  nor  on  the  day  of  sale,  disclose  to  the  owner, 
nor  to  the  auctioneer,  the  name  of  his  principal,  he  is  respon- 
sible as  the  purchaser.* 

'  Levy  V.  Pendergrass,  2  Beav.  415.  ^  Pavne  v.  Cave,  3  Term  Rep.  148. 

2  Tyree  v.  Williams,  3  Bibb,  368.  ■*  McComb  v.  Wright,  4  Johns.  Ch. 
See  Minturn  v.  Allen,  3  Sandf.  50.  659. 

largest  sum,  was  to  be  declared  the  purchaser.  This  was  held  to  be  a  mode 
of  sale  at  auction,  within  the  19  Geo.  III.  ch.  36,  sect.  3  &  4  ;  and  it  was  held, 
that  the  person  who  had  so  conducted  the  sale  had  incurred  the  penalty  of 
£100  thereby  imposed,  for  having  acted  as  an  auctioneer,  without  first  tak- 
ing out  a  license.      Attorney-General  v.  Taylor,  13  Price,  636.    (p.  73,  n.) 


76  LAW  OF  VENDORS  AND  PURCHASERS.      [CH.  VI. 

8.  Where  several  lots  are  knocked  down  to  a  bidder,  and 
his  name  marked  against  them  in  the  catalogue,  a  distinct 
contract,  both  in  law  and  fact,  arises  for  each  lot;  and  a 
memorandum  signed  afterwards  by  him,  stating  that  he 
agrees  to  become  the  purchaser  of  the  several  lots  set  against 
his  name,  docs  not  require  a  stamp,  though  the  aggregate 
exceed  ,£20  in  value,  no  single  lot  being  of  that  price.i  In 
such  case,  in  a  special  action  for  refusing  to  adhere  to  the 
conditions  of  sale,  the  plaintiff  cannot  consolidate  the  con- 
tracts.2 

9.  An  auctioneer  sold,  by  request  of  the  owner,  different 
lots  of  standing  wood,  part  of  them  lying  out  of  his  county. 
The  purchasers  took  the  wood,  and  paid  the  owners  therefor, 
and  the  auctioneer  afterwards  paid  the  duty  on  the  whole 
sales.  Held,  he  might  recover  the  amount  of  such  duty 
from  the  owner,  in  an  action  for  money  paid.^ 

10.  Estates  may  be  let  or  leased,  as  well  as  sold,  by  auc- 
tion. This  is  sometimes  done  by  order  of  Court.  Upon  a 
letting  under  the  Court,  the  person  declared  highest  bidder 
will  not  be  discharged  from  his  bidding,  though  it  was  at  a 
great  overvalue,  and  was  by  an  agent,  who  appeared  to  have 
misapprehended  the  intention  of  his  instructions.  But  the 
lands  may  be  set  up  again,  upon  the  bidder's  undertaking  to 
pay  all  costs  occasioned  by  a  reletting,  and  to  recognize  for 
payment,  yearly,  during  the  term,  of  a  sum  to  be  settled  by 
the  master,  by  way  of  compensation  for  the  loss  of  rent  by 
letting.  Where  the  bidding  was  ,£261  per  annum,  and  was 
excessive,  the  Court  ordered,  upon  consent,  that  the  bidder 
be  deemed  tenant  at  £200,  and  take  out  leases  at  that 
rent,  &c.* 

11.  St.  1822,  ch.  87,  (Massachusetts,)  imposing  a  duty  on 
sales  by  auction,  does  not  embrace  a  lease  thus  made.  Such 
statutes,  imposing  restrictions,  or  levying  an  excise  or  tax 
upon   common    occupations,  are_  to   be    construed    strictly. 

1  Roots  V.  Lord  Dormer,  4  Barn.  &         ^  James  v.  Shore,  1  Stark.  Ca.  426. 
Adol.  77  ;  Emmcrson  v.  Heelis.  2  Taunt.        ^  Robinson  v.  Green,  3  Met.  159. 
38.  *  Coote  V.  Coote,  2  Ir.  Eq.  R.  159. 


CH.  VI.]  SALES    BY    AUCTION.  77 

Here  there  is  nothing  sold  by  Ruction  ;  the  estate  not  exist- 
ing, \yhich  it  was  the  object  of  the  sale  to  fix  a  price  forJ 

12.  We  shall  hereafter  have  occasion  to  inquire,  how  a 
sale  or  purchase  of  land  is  rendered  void.  There  is,  how- 
ever, one  reason  for  avoiding  sales  at  auction  not  applicable 
to  others,  and  which  may  therefore  be  properly  considered  in 
this  connection.  I  refer  to  the  use  of  means  on  the  part  of 
the  vendor  or  the  purchaser,  unknown  at  the  time  to  the 
other  party,  to  raise  or  reduce  the  price  of  the  property 
sold.  Upon  this  subject,  numerous  cases  are  found  in  the 
books,  (a) 

1  Sewall  I'.  Jones,  9  Pick.  412. 

(a)  The  leading  case,  perhaps,  upon  this  subject,  is  Bexwell  v.  Christie, 
Cowp.  395,  where  the  owner  of  a  horse,  to  be  sold  at  auction,  having 
directed  the  auctioneer  not  to  sell  it  under  a  certain  sum  ;  it  was  held,  that 
no  action  would  lie  against  the  auctioneer  for  violating  this  direction,  be- 
cause it  would  be  illegal  to  obey  it ;  otherwise,  if  the  direction  was,  not  to 
put  up  the  horse  under  a  certain  sum.  In  this  case,  Lord  Mansfield  re- 
marked, upon  the  practice  of  employing  bidders  for  the  owner,  that  the 
frequency  of  such  practice  was  no  argument  in  its  favor,  for  the  same  might 
be  said  of  gaming,  stock-jobbing,  and  swindling.  In  another  case, — Howard 
V.  Castle,  6  T.  R.  642, — Lord  Kenyon  uses  the  strong  language  :  "  The  whole 
transaction  is  bottomed  in  fraud — it  is  fraud  from  beginning  to  end.  The 
whole  of  Lord  Mansfield's  reasoning  is  founded  on  the  noblest  principles  of 
morality  and  justice,  and  calculated  to  preserve  honesty  between  man  and 
man."  He  further  remarks,  that,  if  this  had  been  the  first  case,  j^erhaps 
he  should  have  hesitated,  but  "  Lord  Mansfield's  comprehensive  mind  saw  it 
in  its  true  colors." 

On  the  other  hand,  in  the  case  of  Twining  v.  Morrice,  2  Bro.  331,  Ken- 
yon, M.  R.,  says :  "  I  do  not  say  the  doctrine  in  Bexwell  v.  Christie  is 
wrong ;  but  everybody  knows  that  such  persons  are  constantly  employed." 
So,  in  Conolly  v.  Parsons,  3  Ves.  625,  n.,  the  Lord  Chancellor  remarked, 
that  Bexwell  v.  Christie  turned  upon  the  fact  that  there  was  no  real  bidder, 
and  the  purchaser  refused  instantly  to  complete  the  contract.  It  was  a  trap- 
auction.  "  The  reasoning  r/oes  large,  and  does  not  convince  one.  It  would 
reduce  every  thing  to  a  Dutch  auction,  a  bidding  downwards."  The  rule 
has  also  been  questioned  by  Sir  Wm.  Grant  and  Lord  Roslyn. 

The  plaintiff  and  B.  Avere  appointed  by  th^will  of  C,  trustees  to  sell  his 
lands.  They  were  accordingly  sold  at  auction,  after  public  notice.  D.,  the 
7* 


78  LAW    OP   VENDORS    AND^  I'URCIIASEIIS.  [CII.  VI. 

13.  It  may  be  stated,  as  the  general  rule,  that  if  the  owner, 
or  one  of  the  owners,  or  his  agent,  of  an  estate  put  up  at 
auction,  employ  7;«/^t'ys,  or  by-biddcrs,  to  bid  for  him,\vitliout 
declaring  it ;  this  is  a  fraud  on  the  real  bidders,  and  the 
highest  bidder  cannot  be  compelled  to  complete  the  contract, 
or  may  maintain  a  bill  in  equity  to  set  it  aside.'  So,  the 
employment  of  a  puffer  vitiates  the  sale,  even  though  the 
property  brought  no  more  than  its  general  value.^  But  not 
unless  the  buyer  was  thereby  induced  to  bid  more  than  the 
value  of  the  property,  or  more  than  he  had  previously  deter- 
mined to  bid.^ 

14.  The  rule  more  especially  applies,  where  all  the  bidders, 
except  the  purchaser,  are  by-bidders,  secretly  employed  by 
the  seller,  and  the  judgment  of  the  purchaser  is  improperly 
influenced  by  their  bids.^ 

15.  It  is  not  fraudulent  for  a  puffer  to  bid  by  degrees^ 
instead  of  making  his  highest  bid  at  once.^  So,  when  there 
are  real  as  well  as  sham  bidders,  and  the  last  bid  before  the 
purchaser's  is  a  real  one,  and  the  judgment  of  the  real  bid- 
ders and  the  purchaser  has  not  been  blinded  by  the  sham 
bidders,  the  sale  is  valid.^  {a)     Thus,  at  an  auction  sale,  a 

1  Howard   v.    Castle,   6    Term  Kep.  ^  gtaines  v.  Shore,  16  Penn.  200. 

642  ;  Crowden  v.  Austin,  3  Bing.  368  ;  ^  Tomlinson  v.  Savage,  6  Ired.  Eq. 

Towle  V.  Leavitt,  3  Fost.  360  ;  Twining  430. 

V.  Morrice,  2  Bro.  C.  326.     See   Smith  *  Veazie  v.  Williams,  3  Story,  611. 

v.    Clarke,    12    Ves.    476  ;   Bowles    v.  ^  Flint  v.  Woodin,  13  Eng.  Law  & 

Eound,  ,5  Vcs.  508;  Fairfax  v.  Muse,  4  Eq.  278.     See  leely  t.  Grew,  6  C.  &  P. 

Munf.  124;  Hazal  v.  Dunham,  1  Hall,  671. 

146;  Millar  r.  Campbell,  3  Marsh.  526  ;  °  Veazie    v.   Williams,    3    Story   R. 

Donaldson  w.  McRoy,  1  Browne,  346.  611. 


plaintiif's  counsel,  bid  £1,750,  and  the  defendant  £1,751.  D.  was  a  by- 
bidder  of  the  trustees,  who  declared  he  did  not  want  the  land,  and  advised 
the  defendant  to  purchase  it.  Held,  if  the  defendant  had  no  notice  of  D.'s 
being  thus  employed,  and  if  D.  bid  in  order  to  enhance  the  price  for  the 
benefit  of  the  trustees,  the  sale  was  void.  MoncriefF  v.  Goldsborough,  4 
Har.  &  M'H.  281. 

(a)  Where  two  parties  ealter  into  a  wager  as  to  the  price  of  opium  at  a 
certain  sale,  each  knowing  that  the  other  would  use  means  to  influence  the 


CH.  VI.]  SALES    BY   AUCTION.  79 

person  bid  for  the  vendor  <£75  per  acre,  upoi\  private  notice 
to  the  auctioneer.  After  a  contest  with  bond  fide  bidders, 
the  property  was  sold  for  over  £101,  and  some  days  after- 
wards the  vendee  paid  the  duty.  Held,  the  sale  was  binding.^ 
But  the  sale  is  void,  although  only  one  by-bidder  be  em- 
ployed, and  although  he  is  only  to  bid  up  to  a  certain  sum, 
unless  it  is  announced  at  the  time.^ 

16.  Notice  may  be  given,  that  the  property  will  be  put  up 
at  a  certain  price,  or  that  the  owner  reserves  to  himself  one 
bid.2  And,  in  case  of  the  sale  of  property  of  an  infant,  there 
should  be  a  reserved  bidding.*  [a) 

'  Bramley  v.  Alt,  3  Ves.  620.  ^  Towle  v.  Leavitt,  3  Fost.  360. 

2  Wheeler  v.  Collier,  1  IMoo.  &  M.  *  Cutts  v.  Salmon,  12  Eng.  Law  & 
123.  Eq.  316. 


price,  it  is  no  fraud  on  one,  that  the  other  thus  raises  the  pi-ice.  Doolubdass 
r.RamloU,  3  Eng.  Law  &  Eq.  39. 

So,  employing  agents  to  bid  for  such  a  purpose  is  not  an  unlawful  con- 
spiracy.    Ibid. 

So,  if  one  has  a  right  to  purchase  a  certain  quantity  of  opium  at  a  sale, 
no  fraud  on  the  vendors  is  committed  by  bribing  the  agent  of  A.  to  exercise 
that  right.     Ibid. 

It  has  been  held,  in  South  Carolina,  that  the  employment  of  a  bidder  for 
the  vendor  is  not  illegal,  though  no  notice  be  given,  and  the  price  be  thereby 
very  much  enhanced.  Thus,  at  a  sale  of  land,  there  were  honCifide  bidders 
up  to  Sl8  or  S20  per  acre,  after  which  the  bidding  was  confined  to  the 
puffer  and  the  defendant,  who  purchased  at  S44.  The  latter  was  a  good 
judore  of  the  land,  lived  in  the  neighborhood,  and  was  acquainted  with  the 
premises,  while  the  by-bidder  enjoyed  none  of  these  advantages.  The  latter 
also  communicated  openly  with  the  owner.  The  property  was  an  old  family 
seat,  which  was  sold  with  reluctance,  and  merely  for  the  purpose  of  effecting 
a  division,  and  for  which  therefore  the  owner  was  justified  in  securing  a 
large  price.  Specific  performance  was  decreed  against  the  defendant. 
Jenkins  v.  Hogg,  2  Const.  S.  C.  821. 

(a)  An  agreement,  by  an  administrator  or  guardian,  to  offer  the  real 
estate  of  his  intestate  or  ward  for  sale  by  auction,  and  to  sell  the  same  to  a 
particular  individual,  for  an  agreed  price,  provided  no  higher  sum  should  be 
bid,  is  valid.  But  such  an  agreement  to  sell  the  estate  at  a  fixed  price, 
without  regard  to  the  biddings,  is  fraudulent  and  void.  Hunt  v.  Frost,  4 
Cush.  54. 


80  LAW  OF  VENDORS  AND  PURCHASERS.       [f"ll.  VI. 

17.  The  rule  applies  to  a  slierijfs  sale?  Thus,  tiie  em- 
ployment of  a  pulFer  at  a  sale  of  property  seized  under  an 
extent,  by  an  agent  of  the  Crown,  to  whom  a  bidding  is 
reserved  by  the  conditions  of  sah;,  vitiates  the  sale.- 

18.  The  circumstance,  that  a  person  bid  under  the  private 
direction  of  the  vendors,  for  the  purpose  of  preventing  a  sale 
under  a  sum  specified  as  the  value,  is  no  objection  to  a 
specific  performance,  especially  where  the  vendors  were 
assignees  in  banlcruptcy,  and  the  purchaser  was  not  present, 
but  purchased  by  an  agent.^ 

19.  The  misconduct  of  the  purchaser  does  not  preclude 
him  from  objecting  to  the  employment  of  a  puffer.*  But  jt 
is  the  duty  of  the  purchaser  to  return  the  property  as  soon 
as  the  fraud  is  discovered,  unless  it  is  too  late  to  do  so.''  So, 
in  case  of  by-bidding,  the  purchaser,  immediately  upon  the 
discovery  of  it,  must  elect  to  rescind  or  abide  by  the  pur- 
chase. Thus,  where  land  was  sold  as  containing  a  gold- 
mine, and  a  by-bidder  employed  by  the  sellers  to  enhance  the 
price,  and  the  purchasers  brought  a  bill  to  rescind,  twelve 
months  or  more  after  notice  of  this  fact,  in  the  mean  time 
having  continued  to  work  and  explore  the  land ;  held,  they 
were  barred  by  lapse  of  time.*' 

20.  Certain  mill  privileges  of  the  defendants  were  sold  at 
auction  by  H.,  as  their  agent,  to  the  plaintiff.  After  five 
years,  when  the  property  had  greatly  deteriorated,  the  plain- 
tiff brings  a  bill  in  equity,  charging  that  H.  had,  by  sham 
bids,  fraudulently  enhanced  the  price,  far  beyond  the  real 
value  of  the  property  ;  but  not  charging  the  defendants  with 
knowledge  and  connivance  with  him,  at  the  time  of  the  sale. 
Held,  as  the  false  bidding  by  the  auctioneer  was  unauthor- 
ized by  the  seller,  it  would  not  avoid  the  sale,  although  it 
would  be  good  ground  of  action  against  the  auctioneer  for 
damages  ;  that  H.  ought  to  have  been  made  a  party  to  the 

1  Donaldson   v.   McRoy,  1  Browne,  *  Eex  r.  Marsh,  3  Y.  &  Jerv.  331. 
346.  s  Staines  v.  Shore,  16  Perm.  200. 

2  Rex  V.  Marsh,  3  Y.  &  Jerv.  331.     .  «  McDowell  v.   Simms,  1  Bush.  Eq. 

3  Smith  V.  Clarke,  12  Ves.  476.  {N.  C.)  130. 


CH.  VI.]  SALES   BY   AUCTION.  81 

bill,  and  that  the  lapse  of  time  was,  under  the  circumstances, 
a  bar  to  the  suit.^  {a) 

21.  An  agent  for  the  complainants,  in  a  foreclosure  suit, 
may  bid  for  his  principals  in  his  own  name,  without  giving 
notice  of  it  to  other  bidders.^  (b)  So,  at  a  sale  by  order  of 
the  Court,  a  reserved  bidding  was  allowed  to  be  made  one 
of  the  conditions,  the  master  to  fix  the  amount,  and  to  use 
his  discretion  in  communicating  it  to  the  parties,  or  their 
solicitors.^ 

22.  It  has  been  held,  that  the  sale  cannot  be  objected  to 
on  this  ground  (pufRng)  in  a  suit  for  the  price  against  the 
purchaser,  but  only  by  an  action  on  the  case  or  bill  in 
equity.'^ 

23.  By-bidding  may  avoid  a  sale  as  to  part  only  of  the 
property  sold.  Thus,  at  a  sale  by  auction  under  the  decree 
of  the  Orphans'  Court,  A.,  one  of  the  parties  interested,  bid, 
to  raise  the  price,  on  one  tract,  and  B.,  the  agent  of  C, 
another  party  interested,  bid  for  C,  whose  purchase  would 
not  have  been  void  but  voidable,  upon  another.  Held,  the 
sale  of  the  former  tract  was  void,  but  that  of  the  latter  was 
valid.'^ 

24.  While  the  rule  above  stated  has  been  adopted  for  the 
protection  of  purchasers,  another,  and  the   converse  of  the 

'  Veazie  v.  Williams,  3  Story's  Rep.  ^  Jervoise    v.  Clarke,  Jac.  &  Walk. 

611 ;  Tomlinson  v.  Savage,  6  Ired.  Eq.  389. 

430.  *  Millar  v.  Campbell,  3  Marsh.  526, 

^National    Fire    Insurance    Co.    v.  (sed  qucere.) 

Loomis,  11  Paige,  431.  5  Pennock's  Appeal,  U  Pcnn.  446. 


(a)  A  release  of  all  liability  in  the  premises  having  been  executed  by  the 
plaintiff  to  the  auctioneer,  held,  a  release  of  his  principals  the  defendants. 

(b)  If  he  does  this,  without  disclosing  it  to  the  master,  he  is  personally 
responsible.  The  principle,  upon  which  the  employment  of  puffers  is  disal- 
lowed, is,  that  they  are  not  real  Udders,  but  the  instruments  of  the  vendor, 
to  deceive  the  other  bidders.  But  the  principle  is  not  applicable  to  a  master's 
sale  of  property,  under  a  decree,  where  the  complainant  is  authorized  to  bid 
upon  the  property,  at  the  sale,  and  is  bound  to  take  it  if  bid  off,  by  him,  or 
by  his  agent  duly  authorized. 


82  LAW    OP   VENDORS    AND   PURCHASERS.  [CIF.  VI. 

former,  is  applied  for  the  benefit  of  vendors.  Auction  sales, 
(particularly  those  made  by  a  sheriff)  are  said  to  be  founded 
upon  the  idea  of  fair  comj)etition.  And  as  the  employment 
of  puffers  is  a  fraud  upon  the  vendee.,  so  an  association  of 
bidders,  designed  and  calculated  to  stifle  competition,  chill 
the  sale,  and  depress  the  price  below  the  fair  market  value,  it 
being  agreed  that  one  shall  buy  for  the  benefit  of  all,  is  a 
fraud  upon  the  vendor,  as  well  as  a  fraud  upon  the  laiv  and 
against  public  policy,  and  avoids  the  sale  even  at  law,  so 
that  a  deed  executed  in  consequence  of  it  conveys  no 
title.^  (a) 

25.  So,  a  sale  of  mortgaged  land  by  Commissioners  in 
Chancery  ought  to  be  set  aside,  and  another  decreed,  upon 
its  appearing  to  the  Court  that  the  highest  bidder  had  pre- 
viously agreed  with  a  purchaser  from  the  mortgagor,  that  he 
would  allow  such  purchaser  to  redeem  the  land  within  a 
limited  time,  by  repaying  him  his  money  with  interest ;  and 
that  such  agreement  being  known  at  the  sale,  other  persons 
were  induced  to  refrain  from  bidding,  and,  consequently,  the 
land  was  struck  off  at  a  price  inferior  to  its  value.^ 

26.  So,  an  agreement  by  the  owner  of  an  execution,  on 
which  lands  to  an  amount  in  value  far  exceeding  the  debt 
had  been  seized,  to  prevent  the  usual  competition  at  the 
sherifi's  sale,  and  in  order  to  leave  a  balance  due  on  the 
execution,  for  the  purpose  of  having  lands  of  the  debtor,  in 
other  counties,  seized  and  sold,  is  fraudulent ;  and  the  execu- 
tion is  deemed,  in  law,  satisfied.^  So,  A.,  being  indebted  to  B., 
mortgaged  to  him  certain  property,  which  was  levied  on  by 
C.  under  an  execution.  Before  the  sale,  A.  agreed  by  parol 
with  C,  that  C.  should  bid  in  the  property  at  the  amount  of 

1  Smith  z'.  Greenlee,  2  Devereux,  126;  -  Wood's    Executor    v.    Hudson,    5 

Martin  v.  Raulett,  5  Rich.  541  ;  Piatt  Miinf.  423. 

V.    Oliver,    1    McL.   295  ;    Phippen   i-.  '■^  Troup  v.  Wood,  4  Johns.  Ch.  228. 

Sticknev,  -T  Met.  384  ;  Switzer  r.  Sidles,  See  Hamburgh  v.  Edsall,  I  Halst.  Ch. 

3  Gilm."529.                                                 '  249,  658. 

(a)  It  has  even  been  held  an  indictable  conspiracy.     Levi  v.  Levi,  6  Car. 
&  P.  239. 


CH.  VI.]  SALES   BY   AUCTION.  83 

the  execution,  and  give  A.  time  to  redeem  it  for  the  benefit 
of  B.  Other  persons,  friends  of  A.,  who  were  also  present 
at  the  sale,  did  not  bid,  relying  on  this  agreement.  Held, 
on  a  bill  in  equity  to  enforce  the  agreement,  that  it  was  not 
within  the  Statute  of  Frauds,  so  as  to  prevent  its  execution 
by  a  Court  of  Equity ;  but,  whether  it  was  valid  or  not,  that 
this  sale  could  not  be  ratified,  as  there  were  parties  present, 
who  were  kept  from  bidding  by  their  knowledge  of  the 
agreement.! 

27.  A  plantation,  worth  at  least  $40,000,  was  ordered 
by  the  Court  of  Chancery  to  be  sold,  to  satisfy,  in  their 
order,  four  mortgages,  given  to  secure  debts  amounting  to 
$80,000.  The  first  mortgage  was  owned  by  B.,  and  secured 
a  debt  of  $22,000,  and  the  last  was  owned  by  N.,  his  debt 
being  $17,000.  B.  also  had  an  unsecured  debt  against  the 
mortgagor  of  $16,000.  N.  had  determined,  if  necessary  to 
secure  his  debt,  to  bid  the  property  up  to  $50,000,  and  this 
coming  to  the  knowledge  of  B.,  he  proposed  that  if  N.  would 
not  bid  against  him,  and  if  he  should  purchase  the  planta- 
tion at  or  under  $30,000,  he  would  secure  N.'s  debt — the 
agreement  to  be  at  an  end,  if  the  biddings  went  over 
$30,000.  This  was  acceded  to,  and  at  the  sale  B.  bid  off 
the  property  at  $11,000.  B.  had  entered  into  an  aiTange- 
ment  before  the  sale,  if  he  became  purchaser,  to  sell  the 
property,  on  credit,  for  $55,000,  a  sum  sufficient  to  secure 
his  own  mortgage,  N.'s  mortgage,  and  B.'s  unsecured  debt. 
Held,  on  the  application  of  the  intermediate  mortgagees, 
that  the  agreement  between  B.  and  N.  was  illegal,  and  the 
sale  was  set  aside.'-^ 

28.  A.  and  B.,  sureties  of  C,  whose  property  was  about 
to  be  sold  at  sheriff's  sale,  for  the  purpose  of  indemnifying 
the  sureties,  agreed  not  to  bid  against  each  other ;  that  B. 
should  bid,  and  that,  if  the  property  was  knocked  off  to  him, 
the  sureties  of  C.  should  share  in  the  benefit  of  a  resale.     A. 


'  Rose  r.  Bates,  12  Mis.  30.  ^  Hamilton  v.  Hamilton,  Rich.  Eq. 

355. 


84  LAW    OF   VENDORS    AND   I'URCIIASEIIS.  [cil.  VI. 

intended  to  bid  at  the  sale,  and,  but  for  the  agreement,  would 
have  done  so.  On  the  day  of  sale,  B.  met  a  judgment  cred- 
itor of  C,  who  attended  "  for  the  purpose  of  looking  after  his 
case,"  and,  telling  him  he  need  not  bother  himself,  offered  to 
buy,  and  did  buy,  his  judgment.  At  the  sale,  B.  purchased 
property  to  a  considerable  amount,  and  at  a  considerable 
sacrifice.  Held,  on  a  bill  filed  by  the  creditors  of  C,  that 
the  conduct  of  B.,  in  silencing  bidders,  was  illegal,  and  the 
sale  was  set  aside.' 

29.  When  mortgaged  property  has  been  described  in  the 
advertisement  of  the  sheriff  as  subject  to  a  larger  ground 
rent  than  it  really  is,  and  thereby  sold  at  an  under-price ;  the 
sale  will  be  set  "aside,  though  before  it  occurred  the  mistake 
was  corrected.^ 

30.  There  are  cases,  however,  which  somewhat  qualify  the 
general  principle  above  stated.  Thus,  it  is  said,  that  a  sale 
is  not  invalid,  when  an  association  of  bidders  has  for  its 
object  a  fair  competition,  and  is  formed  because  one,  from 
the  magnitude  of  the  purchase  or  the  like,  cannot  bid  on  his 
own  account.  So,  if  the  purpose  be,  to  enable  each  of  the 
parties  to  become  a  purchaser,  when  he  desires  a  part  of  the 
property  only,  or  any  other  honest  and  reasonable  purpose.^ 
So,  it  has  been  held,  that  sales  on  execution  are  distinguish- 
able in  this  respect  from  voluntary  sales,  and  especially  sales 
of  public  lands,  made  at  public  auction  by  the  United  States  ; 
and,  it  is  said,  that  an  association  of  individuals  cannot  pur- 
chase at  such  sales,  is  a  novel  doctrine.  So  it  has  been  held, 
that  lien  creditors,  as  well  as  others,  may  purchase  jointly, 
even  at  sheriff's  sales,  if  all  be  open  and  fair.  A  combination 
of  interests  for  that  purpose  is  not  necessarily  corrupt.  It  is 
the  end  to  be  accomplished,  which  makes  such  a  combination 
lawful  or  otherwise ;  if  it  be  to  depress  the  price  of  the  prop- 
erty by  artifice,  the  purchase  will  be  void ;  if  it  be  to  raise 

1  Hamilton  v.  Hamilton,  Eich.  Eq.  Welch  v.  Murray,  lb.  196  ;  Denn  v. 
355.  Lecon}^  Coxe,  39. 

2  Wells  i;.  Pheiffer,  4  Yea.203.     See        3  gmith   v.   Greenlee,   2   Dev.   126; 

Kearney  v.  Taylor,  15  How.  494. 


CII.  VI.]  SALES    BY   AUCTION.  85 

the  means  of  payment  b^contribution,  or  to  divide  the 
property  for  the  accommodation  of  the  purchasers,  it  will  be 
valid.^  So,  an  agi'eement  between  A.  and  B.,  that  B.  will 
permit  A.  to  buy  a  tract  of  land  which  is  fo  be  sold  at  auc- 
tion, and  that  A.  will  buy  it,  and  convey  a  certain  part 
thereof  to  B.  at  an  appraisement  to  be  made  by  persons 
named  in  the  agreement,  is  not,  on  the  face  of  it,  void  for 
illegality.-  So,  a  mere  unsuccessful  attempt  of  the  purchaser 
to  prevent  a  person  from  bidding  will  not  avoid  the  pur- 
chase.3 

31.  The  general  rule,  above  considered,  applies  as  well 
between  the  parties  themselves  who  enter  into  the  illegal 
agreement,  as  in  reference  to  the  vendor.  Thus,  the  contract 
or  job  for  making  a  road  was  put  up  at  auction,  and  A.  and 
B.  agreed  that  one  of  them  should  bid,  and,  if  the  contract 
should  be  struck  off  to  him,  the  other  should  have  an  equal 
share  in  it.  B.  having  become  the  purchaser,  A.  brought  an 
action  against  him  on  the  agreement.  Held,  the  agreement 
was  without  consideration,  and  void."^ 

32.  But  a  party  not  prejudiced  cannot  avoid  an  auction 
sale,  on  account  of  proceedings  on  the  part  of  others  con- 
cerned, which  may  tend  to  reduce  the  price.  Thus,  if  the 
trustee,  or  one  of  the  creditors,  in  a  deed  for  the  benefit  of 
creditors,  be  authorized  to  prescribe  the  day  of  sale,  and  the 
length  of  time  for  which  it  shall  be  advertised  ;  the  failure 
to  notify  any  of  the  creditors  of  the  time  and  place,  does  not 
warrant  the  inference,  that  as  to  one  of  the  creditors  provided 
for,  and  who  attended  the  sale  and  purchased  the  property, 
the  sale  was  fraudulent ;  and  the  grantor,  who  assented  to, 
and  was  present  at  the  sale,  cannot,  upon  that  ground,  defeat 
an  action  by  the  purchaser  for  the  recovery  of  the  articles  sold. 
And  where  the  sale  of  property,  which  had  been  conveye.d 
by  deed  of  trust,  was,  under  the  powers  conferred,  expedited, 
(with  the  assent  of  the  grantor,)  so  as  to  prevent  the  inter- 

1  Small  V.  Jones,  W.  &  Serg.  128.  '^  Haynes  v.  Crutchfield,  7  Ala.  189. 

■^  Phippen  v.  Stickney,  3  Met.  384.  *  Wilbur  v.  How,  8  Johns.  444. 


86  LAW   OF   VENDORS   AND   PURCHASERS.  [cil.  VI. 

ference  of  some  of  his  creditoii^who  were  prosecuting  their 
claims  to  judgment ;  the  grantor,  when  sued  by  the  purchaser 
at  the  trust  sale  for  property  sold,  cannot  for  that  cause  de- 
feat a  recovery.'  • 

33.  If  a  purchaser  at  sheriff's  sale  participate  in  a  fraudu- 
lent contrivance,  by  which  he  was  enabled  to  become  the 
purchaser,  in  an  action  of  ejectment  against  him  for  the 
property,  it  is  not  necessary  that  the  plaintiff  should  offer  to 
refund  the  amount  bid  and  paid.^ 

34.  It  is  not  per  se  fraudulent  for  the  owner  to  act  as 
auctioneer.^  But  it  has  been  suggested,  that  an  auction 
sale  to  an  association,  of  which  the  auctioneer  is  a  member, 
is  invalid."*  And  it  has  been  expressly  decided,  that  an 
auctioneer  cannot  purchase  property  himself.  So,  if  he  has 
also  been  in  other  respects  connected  with  the  vendor,  as 
by  valuing  the  property ;  and  purchases  the  estate  the  next  . 
day  by  private  contract,  it  not  being  sold  at  auction,  for 
want  of  a  bid ;  and  fails  to  give  a  satisfactory  account  of 
the  proceedings  in  his  answer  to  a  bill  filed  against  him ;  the 
purchase  will  be  set  aside.  In  such  case,  the  duties  of  an 
agent  do  not  cease  with  tlie  auction.^ 

35.  But  a  purchase  by  an  auctioneer  for  himself  is  not 
void,  but  voidable  by  the  principal.  Third  persons  cannot 
question  the  sale.*^ 

36.  As  in  the  case  of  other  agents,  (see  Chap.  V.,)  an  auc- 
tioneer's authority  to  sell  land  need  not  appear  in  writing.''^ 

37.  An  auctioneer  cannot  delegate  his  authority.^  But  he 
may  employ  another  person  to  use  the  hammer  and  make 
the  outcry,  under  his  immediate  supervision  and  direction ; 
and,  though  he  is  occasionally  absent  during  the  sale,  the 
agent  will  not  incm'  the  penalty  of  selling  without  license.^ 
Whether  the  transaction  was  a  sale  by  the  auctioneer,  made 


1  Ilaynes  v.  Crutchfield,  7  Ala.  189.  ^  Oliver  v.  Court,  8  Price,  127. 

"^  Small  V.  Jones,  W.  &  Serg.  128.  «  Veazie  v.  Williams,  3  Storj',  611. 

3  Flint  V.  "Woodin,  13  Eng.  Law  &  ^  Doty  v.  Wilder,  15  111.  407. 

Eq.  278.  8  Stone  v.  The  State,  12  Mis.  400. 

*  Kearney  v.  Taylor,  15  How.  494.  ^  Cora.  v.  Harndcn,  19  Pick.  482. 


CH.  VI.]  SALES   BY   AUCTION.  87 

through  the  defendant,  or  by  the  defendant,  under  pretence 
of  a  permission  from  the  auctioneer,  in  order  to  evade  the 
statute,  is  a  question  for  the  jury.' 

38.  Questions  sometimes  arise,  as  to  the  authority  of  the 
auctioneer  to  receive  payment  for  the  property  sold. 

39.  An  auctioneer's  authority,  to  receive  a  portion  of  the 
purchase-money,  which,  by  the  terms  of  sale,  is  to  be  paid 
within  a  certain  time,  does  not,  ipso  facto,  expire  immediately 
at  the  end  of  that  time.^ 

40.  Under  some  circumstances,  payment  to  the  auctioneer 
will  be  invalid. 

41.  Thus,  the  plaintiff  having  employed  an  auctioneer  to 
sell  timber  growing,  the  following,  amongst  other  conditions, 
were  read  at  the  sale,  in  presence  of  the  defendant :  "  That 
each  purchaser  should  pay  down  a  deposit  of  .£10  per  cent, 
in  part  of  the  purchase-money,  and  pay  the  remainder  on  or 
before  the  17th of  August;  but  in  case  any  purchaser  should 
prefer  to  pay  the  whole  amount  of  his  purchase-money  at  an 
earlier  period,  discount  after  the  rate  of  £5  per  cent,  will  be 
allowed."  Also,  "that  each  purchaser  shall  enter  into  a 
proper  agreement  and  bond,  if  required,  with  such  one,  two, 
or  more  sureties  as  shall  be  approved  by  the  vendor,  or  his 
agent,  for  the  performance  of  his  agreement,  pursuant  to  the 
above  conditions."  The  defendant  purchased  one  lot,  and 
paid  the  deposit.  Some  days  after  the  sale,  which  was  on 
the  14th  of  February,  the  defendant,  at  the  auctioneer's  re- 
quest, drew  a  bill  of  exchange  for  the  residue  of  the  pur- 
chase money,  dated  on  the  day^f  the  sale,  and  payable  in 
six  months  to  his  own  order,  and  indorsed  it  to  the  auction- 
eer, who  indorsed  it  to  a  creditor  of  his  own.  When  the  bill 
became  due,  it  was  paid,  but  never  transferred  to  the  plaintiff. 
Held,  the  delivery  and  payment  of  the  bill  was  not  a  valid 
payment  of  the  purchase-money,  the  auctioneer  having  no 
authority  to  receive  payment,  or,  if  he  had  such  authority, 
only  in  cash.^ 

'^  Com.  V.  Harndcn,  19  Pick.  482.  3  gyij^gg  j,_  Qjieg,  5  M.  &  W.  645. 

-  Pinckney  v.  Hagadoni,  1  Ducr,  89. 


88  LAW    op   VENDORS    AND    PURCHASERS.  [cil.  VI. 

42.  The  auctioneer  is,  in  general,  responsible  for  ihe  pur- 
chase money  paid  him,  only  to  his  employer.  Thus,  the 
defendant,  an  auctioneer,  was  employed  by  a  ])erson  in  em- 
barrassed circumstances,  known  to  the  defendant,  to  sell  his 
property  ;  sold  it,  and  paid  the  proceeds  to  his  order.  The 
owner  was  soon  afterwards  declared  insolvent.  Held,  the 
defendant  was  not  liable  to  the  assignees.^ 

43.  It  has  been  questioned,  whether  sales  by  auction, 
except  those  made  under  a  decree,  are  within  the  Statute  of 
Fravds?  But  the  weight  of  authority  is  that  they  are.^ 
Thus,  where  a  contract  for  the  sale  of  land  has  been  aban- 
doned, and  an  action  brought  for  the  deposit,  and  the  plaintiff 
declares  on  the  special  circumstances,  and  states  the  contract, 
he  must  prove  it  to  have  been  a  valid  one,  by  a  note  in 
writing,  even  though  the  sale  was  by  auction.'*  (a) 

,  44.  But  if  auction  sales  are  within  the  statute,  the  weight 
of  authority  also  i*s,  that  an  auctioneer  is  by  implication  an 
agent,  duly  authorized  to  sign  a  contract  for  the  purchase  of 
a  real  estate,  on  behalf  of  the  highest  bidder.  Writing  the 
name  of  the  highest  bidder  in  his  book,  or  memorandum  of 
sale,  is  a  sufficient  signature,  more  especially  if  done  imme- 
diately on  receiving  the  bid  and  knocking  down  the  hammer. 
And,  if  the  highest  bidder  is  agent  for  another,  and  if  the 
terms  and  conditions  are  stated,  the  writing  of  the  bid- 
der's name  will  bind  the  principal ;  at  least  if  the  principal 
is  present,  and  consulting  with  the  agent  during  the  sale, 
and  makes  no  objection  before  the  entry  made  in  the  book.'^ 

1  White  r.  Bartlctt,  9  Bing.  378.   M^  M'Comb  v.  Wright,  4  Johns.  Ch.  659; 

-  Simon  I'. Mo tivos,  1  Bl.  599  ;  Brook  Pinckney   v.  Hagadorn,    1    Duer,   89; 

V.  Jones,  8  Tex.  78.  Doty  v.  Wilder,   15  111.  407  ;  Hunt  v. 

3  Blagden  t'.  Bradbear,  12  Ves.  4GG;  Gregg,    8    Bl.ickf.    105:    Meadows   v. 

Higginson  v.  Clowes,  15  Ves.  516.  Meadows.  3  M'C.  458.     Sec  Bartlett  v. 

*  Walker  v.  Constable,  2  Esp.   Ca.  Piirncll,  4  Ad.  &  Ell.   792  ;   Howe   v. 

659.  Dewing,  2  Gray,  476. 

5  White   V.   Proctor,  4  Taunlj^  209 ; 

(a)  A  sheriff's  sale  is  within  the  statute,  but  his  return,  stating  fully  the 
terms  of  the  contract,  if  made  immediately  upon  the  sale,  is  a  sufficiejit 
signing.  If  otherwise,  not.  Jackson  v.  Catlin,  2  Johns.  248  ;  Hunt  v.  Gregg, 
8  Blackf.  105. 


CU.  VI.J  SALES    BY   AUCTION.  89 

The  auctioneer's  authority  is  given  by  the  buyer's  bidding 
aloud,  or  giving  in  his  name.'  And  specific  performance 
will  be  decreed  against  the  purchaser,  upon  the  note  made 
by  the  auctioneer.^ 

45.  On  the  other  hand,  it  has  been  held,  that  the  auctioneer 
is  not  an  agent  for  both  parties,  and  therefore  such  entry  in  his 
book  is  not  a  sufficient  note  in  writing.*^  [a)  More  especially 
that  fact  not  being  proved  to  be  contemporary,  and  the  auc- 
tioneer being  also  vendor.*  So,  a  plea,  that  "A.,  by  his  writing, 
sold  the  after-math  of  land  to  B.,"  is  not  proved  by  evidence, 
that,  at  an  auction  held  for  the  purpose  of  selling  it,  B.  was 
the  purchaser,  and  gave  his  note  for  the  price,  and  that 
his  name  was  written  by  A.'s  agent  in  the  printed  cata- 
logue, as  the  buyer.^  So,  the  rule  above  stated  extends  only 
to  persons  exercising  the  public  business  of  an  auctioneer, 
not  to  mere  private  agents  of  the  vendor.^ 

46.  The  mere  signing  of  the  auctioneer  is  not  sufficient, 

'  Emmerson  v.  Heelis,  2  Taunt.  38  ;  highest  bidder  at  a  sale  of  land,  to  re- 
Simon  V.  Motives,  1  Black.  599.  In  cover  money  paid  by  the  plaintiff  for 
this  case,  Lord  Mansfield  remarked,  that  the  auction  dutj^ ;  which,  by  the  con- 
thc  solemnity  of  an  auction  sale  pre-  ditions,  the  purchaser  was  to  pay.  It 
eludes  all  perjury  as  to  the  fact  of  the  appeared  that  the  sale  was  invalid,  in 
sale ;  and  expressed  it  as  the  inclination  consequence  of  the  plaintiff's  having 
of  his  opinion,  that  auctions,  in  general,  omitted  to  set  down  the  name  of  the 
are  not  within  the  Statute  of  Frauds,  defendant.  Held,  neither  this  action, 
Wilmot,  J.,  was  inclined  to  think,  that  nor  an  action  for  money  paid,  would  lie. 
sales  by  auction,  openly  transacted  be-  Jones  v.  Nanney,  13  Price,  76.  See 
fore  five  hundred  people,  were  not  within  Deven  v.  Davenell,  3  Camp.  451. 
the  statute.  But  in  Hinde  v.  White-  -  Kemeys  v.  Proctor,  3  Ves.  &  B.  57  ; 
house  (7  E.  568,)  Lord  Ellenborough  1  Jac.  &  Walk.  350. 
remarked,  that,  with  all  due  deference,  ^  Stansfield  v.  Johnson,  1  Esp.  Ca. 
it  was  no  sufficient  reason  to  dispense  101  ;  Buckmaster  v.  Harrop,  13  Ves. 
with  the  statute,  merely  that  the  quan-  456.  See  Simon  v.  Motivos,  1  Black. 
turn   of  parol   evidence   diminishes   the  599. 

danger  of  perjury  ;  but  failed  to  express  *  Buckmaster  v.  Harrop,  13  Ves.  456. 

a  decided  opinion  upon  either  side  of  ^  Symonds  v.  Ball,  8  Term  Rep.  151. 

the  question.    The  plaintiff,  an  auction-  ^  Anderson  v.  Chick,  1  Bai.  Eq.  118. 
eer,  brings  special  assumpsit  against  the 


(a)  By  the  Revised  Statutes  of  New  York,  a  contract  of  sale  is  void,  and 
not  binding  upon  the  vendor  or  vendee,  unless  subscribed  by  the  vendor  or 
his  agent  thereto  duly  authorized ;  and  the  entry  by  the  auctioneer  on  his 
books  is  not  a  signing  within  the  statute.  Miller  v.  Pelletier,  4  Edw.  Ch. 
102. 

8* 


DO  LAW   OF   VENDORS   AND   PURCHASERS.  [cif.  VI. 

unless  the  terms  and  conditions  of  the  sale  appear  in  the 
paper  signed.  His  memorandum,  or  some  writing  connected 
therewith,  must  refer  to  tlie  conditions  of  sale,  and  state 
the  material  terms  of  the  agreement.^  Thus,  an  auctioneer, 
after  reading  or  exhibiting  written  conditions,  made  this 
memorandum  :  "  Sale,  on  account  of  Messrs.  Morton  and 
Dean,  assignees  of  the  Taunton  Iron  Company,  of  the  real 
estate,  nail-works,  water-privilege,  buildings,  and  machinery, 
agreeable  to  the  plans  and  schedule  herewith.  Sale  to.  Silas 
Dean  for  $30,300.  April  5th,  1843."  Held,  this  memoran- 
dum was  insufficient,  not  containing  nor  referring  to  the 
conditions  of  sale.^  So,  an  auctioneer's  receipt  for  the  de- 
posit, not  containing  expressly  or  by  reference  the  terms, 
viz :  the  price,  cannot  bind  the  vendor  as  an  agreement.^ 
So  where,  on  the  sale  of  an  estate  by  auction,  the  name  of 
the  owner  does  not  appear  in  the  particulars  or  conditions  of 
sale,  or  in  the  agreement  signed  by  the  purchaser,  and  the 
agreement  is  not  signed  either  by  the  vendor  or  the  auc- 
tioneer, it  seems  the  seller  cannot  maintain  an  action  on  the 
contract.'^ 

47.  The  agent.,  contemplated  by  the  17th  section  of.  the 
statute,  who  is  to  bind  a  defendant  by  his  signature,  must  be 
a  third  person,  and  not  the  other  contracting  party.  There- 
fore, where  an  auctioneer  wrote  the  defendant's  name,  by  his 
authority,  opposite  to  the  lot  purchased ;  held,  in  an  action 
brought  in  the  name  of  the  auctioneer,  the  entry  was  not 
sufficient.^  So,  where  an  administrator,  licensed  to  sell  the 
real  estate,  acted  as  auctioneer ;  held,  a  memorandum  by 
him  of  the  sale  at  the  time  was  not  binding  on  the  pur- 
chaser, the  auctioneer  not  being  in  law  his  agent.^ 

48.  It  has  been  held,  that  the  highest  bidder  is  bound  by 
the  entry  in  the  sale-book  by  the  auctioneer's  clerk,  made  in 
his  presence,  upon  his  name  being  called  out  as  the  pur- 

1  Morton  v.  Dean,  13  Met.  385  ;  Doty  *  Wheeler  v.  Collier,  1  M.  &  M.  123. 
V.  Wilder,  15  III.  407.  ^  Farebrother  v.  Simmons,  5  Barn.  & 

2  Ibid.  Aid.  333. 

3  Blagden  v.  Bradbear,  12  Ves.  466.  ^  gmith  v,  Arnold,  5  Mas.  414. 


en.  VI.]  SALES   BY   AUCTION.  91 

chaser,  even  in  an  action  brought  by  the  auctioneer.^  If 
an  auctioneer  has  a  clerk,  to^  make  entries  in  the  sale- 
book  ;  authority  of  the  purchaser,  to  enter  his  name  in 
such  book,  must  necessarily  be  implied,  where,  within  view 
of  all  the  bidders,  he  is  employed  to  thus  enter  the  nanreb ; 
and  such  authority  may  be  given  before  or  at  the  time 
of  entry,  and  a  subsequent  assent  of  the  purchaser  will  con- 
firm an  entry  made  without  authority.^  So,  an  auction- 
eer's clerk,  under  a  general  authority  to  act  in  his  master's 
absence,  may  sign  a  contract  for  sale,  where  the  vendor  knew 
that  he  was  so  to  act.  So,  where  such  clerk  signs  the  con- 
tract as  a  witness  for  his  master,  who  is  authorized  to  sell, 
he  may  be  considered  as  a  contracting  party  according  to 
the  statute.^ 

49.  But,  in  the  following  case,  lands  of  the  defendant  were 
put  up  by  him  at  auction,  and  one  condition  of  the  ag||  was, 
that  the  purchaser  should  pay  a  deposit  and  half  the  auction- 
duty.  The  plaintiff  purchased  and  paid  as  above,  and  signed 
a  written  memorandum  of  the  contract,  which  A.  B.,  the 
auctioneer's  clerk,  also  signed,  as  follows  :  "  Witness,  A.  B." 
A.  B.  received  the  above  sums  for  C,  the  auctioneer,  and 
signed  the  receipt  (being  authorized  by  C.  to  do  so,)  as  fol- 
lows :  "  For  Mr.  C,  A.  B."  Money  was  afterwards  paid  over 
'  by  the  auctioneer  on  the  purchase,  to  D.,  the  defendant's 
attorney,  as  his  agent.  The  defendant  not  being  able  to 
make  out  his  title,  D.,  as  his  agent,  wrote  a  letter  to  the 
plaintiff's  attorney,  naming  the  plaintiff  and  defendant,  say- 
ing that  he  could  not  make  out  the  title  to  "  this  property  as 
freehold,"  advising  the  plaintiff  to  relinquish  his  purchase, 
and  referring  to  the  "  charges  "  to  be  made  by  the  plaintiff's 
attorney.  Held,  that  A.  B.  did  not  sign  the  memorandum 
as  agent  to  the  defendant ;  that  neither  his  agency  nor  the 
contract  was  recognized  by  the  receipt  of  the  money  or  D.'s 

'  Bird  V.  Boulter,  1  Ncv.  &  Man.  313;  -  Cathcart  v.  Keirnaghan,  5  Strobh. 

4  Barn.  &  Adol.  447  ;  Doty  v.  Wilder,  129. 

15  III.  407.    But  see  Meadows  v.  Mca-  ^  i  Smith's  Rep.  233. 
dows,  3  M'C.  458. 


92  LAAV    OF   VENDORS   AND    PUIICHASERS.  [CII.  VI. 

letter;  tliat  there  was,  consequently,  no  proof  of  a  contract 
to  make  a  title,  on  which  Jhe  defendant  could  be  charged 
under  section  4  of  the  Statute  of  Frauds ;  and  therefore,  that 
although  the  plaintiff  might  recover  the  deposit  and  moiety 
o^^uction-duty  as  money  had  and  received,  he  could  not  re- 
cover interest  thereon,  nor  his  expenses  of  investigating  the 
title.i 

50.  Questions  have  arisen  as  to  the  introduction  of  parol 
evidence  in  relation  to  auction  sales  of  land,  &c.  Upon  this 
subject,  it  is  held,  that  the  verbal  declarations  of  an  auc- 
tioneer, at  the  time  of  sale,  are  not  admissible,  to  contra- 
dict the  printed  conditions  or  particulars.^  So,  though  the 
question  arises  on  a  sub-sale  by  the  purchaser.^  So,  though 
a  paper,  as  the  particular  upon  a  sale  by  auction,  may  by 
reference  be  engrafted  into  a  contract  within  the  Statute  of 
Fraud[||that  will  not  authorize  the  introduction  of  parol 
evidence  to  show  what  part  was  read."^  So,  parol  evidence 
is  not  competent,  in  aid  of  a  specific  performance,  to  explain  ' 
by  declarations  of  the  auctioneer  an  ambiguity  on  the  face  of 
the  particular,  growing  out  of  a  general  clause  for  a  separate 
valuation  of  the  timber,  and  also  special  provisions  as  to  the 
timber  upon  certain  lots ;  the  agreement,  signed  on  tlie  back 
of  the  particular,  binding  the  purchaser,  the  defendant,  "  to  a 
strict  fulfilment  of  the  article,  and  to  abide  by  the  conditions 
and  regulations  made  at  the  sale."  ^  So,  in  an  action  against 
a  purchaser  at  auction,  for  not  completing  the  sale,  the 
printed  conditions  cannot  be  contradicted  by  the  verbal 
declarations  of  the  auctioneer  at  the  time,  in  order  to  dis- 
prove the  charge  of  misrepresentation.  Thus,  where  the 
conditions  were,  that  the  property  was  "  free  from  all  incum- 
brances," when,  in  fact,  there  was  a  charge  upon  it  of  X17 
per  annum,  which  the  auctioneer  declared,  but  not  to  the 
purchaser  individually ;  held,  no  action  would  lie  against  the 

1  Gosbell  V.  Archer,  2  Ad.  &  Ell.  500.        *  Higginson  v.  Clowes,  15  Ves.  515. 

2  Gunnis  v.  Erhart,  1  H.  Bl.  289.  ^  Ibid. 
^  Shelton  v.  Livins,  2  Cromp.  &  Jerv. 

411. 


CH.  VI.]  SALES   BY   AUCTION.  '  93 

latter  for  not  completing  his  purchased  So,  where  printed 
conditions  of  sale  of  timber,  growing  in  a  certain  close,  do 
not  state  the  quantity,  parol  evidence  is  not  admissible  that 
the  auctioneer  warranted  a  certain  quantity .- 

51.  But  parol  evidence  of  declarations  by  the  auctioneer 
at  the  sale,  warranting  the  quantity,  were  received  in  oppo- 
sition to  a  specific  performance,  on  the  ground  of  fraud  ;  not 
to  enforce  the  performance.^  (a)     So,  though  parol  evidence 

1  Gunnis  v.  Erhart,  1  H.  Bl.  289.  ^  Winch  v.   Wiuchester,   1    Vcs.   & 

■^  Powell  V.  Edmunds,  12  East,  6.  Beam.  375. 

(a)  Assumpsit,  ujion  a  promise  by  the  defendant  to  pay  one  A.  the  amount 
of  a  debt  due  from  the  plaintiff  to  A.,  secured  by  a  mortgage  of  the  plain- 
tiff's real  estate,  in  consideration  of  a  deed  of  release  given  by  the  plaintiff 
to  the  defendant  of  such  estate.  It  appeared,  that  the  plaintiff  had  an 
auction  sale  of  his  property,  including  the  estate  in  question.  When  this 
was  offered  for  sale,  the  auctioneer,  after  describing  the  property,  stated  the 
precise  amount  of  the  mortgage,  and  called  for  bids  by  asking,  "Who  will 
give  more  ?  "  or,  "  How  much  more  will  you  give  ?  "  and  it  was  struck  off  to 
B.  for  $50.  The  defendant,  being  present  at  the  sale,  afterwards  agreed 
with  B.  to  buy  his  bid  for  .S25  advance.  The  plaintiff  thereupon  gave  a 
quitclaim  deed  to  the  defendant,  with  a  covenant  against  the  claims  of  all 
persons  Riming  by,  from,  or  under  him,  except  the  mortgage,  and  the 
defendai^^aid  to  B.  the  sum  agreed.  Held,  parol  evidence  was  admissible, 
of  an  understanding  by  the  plaintiff  and  B.  at  the  sale,  that  the  purchaser 
■was  to  pay  the  mortgage  debt,  notwithstanding  the  memorandum  of  the 
auctioneer's  clerk  and  the  deed  of  tlie  plaintiff;  and  that  the  agreement  was 
not  within  the  Statute  of  Frauds.  Fiske  v.  M'Gregory,  Law  Rep.  Mar.  1857, 
p.  633,  (New  Hampshire.) 

Assumpsit  for  the  price  of  land  sold  at  auction.  The  bid  was  $600,  $200 
to  be  paid  down,  which  was  done;  the  balance  to  be  secured  on  time,  and 
the  deed  executed  upon  production  of  the  requisite  securities.  The  plaintiffs 
made  a  proper  deed,  and  tendered  it  on  condition  of  receiving  the  securities. 
The  defendant  did  not  give  them,  but  obtained  the  deed  and  placed  it  on 
record  without  consent  of  the  plaintiff,  and  took  possession  of  the  land.  Held, 
the  defendant  having  treated  the  deed  as  delivered,  the  plaintiff  might  elect 
to  do  so,  and  thus  vest  the  title  in  the  defendant,  notwithstanding  the  Statute 
of  Frauds.  Also,  that  a  special  action  could  be  maintained  against  the 
defendant,  for  failing  to  furnish  the  securities,  before  the  time  fixed  for  pay- 
ment, and  damages  recovered  to  the  amount  of  the  agreed  price.  Also,  that 
a  general  action  for  the  price  might  be  brought,  after  the  time  of  payment 
had  passed.   Ascutney,  &c.  i'.  Ormbsy,  Law  Rep.  Dec.  1,  1856,  p.  469,  (N.  H.) 


94  LAW  OF  VENDORS  AND  PURCHASERS.       [CH.  VI. 

of  the  declarations  of  an  auctioneer,  contrary  to  the  written 
terms  of  sale,  is  not  admissible,  such  evidence,  as  to  the 
property  intended  to  be  sold  by  him,  is  proper^  So,  a  pur- 
chaser at  auction  is  bound  by  verbal  declarations  of  the 
vendor,  made  publicly,  at  the  sale,  and  before  the  biddings ; 
which  declarations  are  not  variant  from  the  terms  advertised, 
but  are  additional  and  explanatory  thereto.  And  he  shall 
be  compelled  to  complete  his  purchase  according  to  the 
terms  so  explained.^ 

52.  It  has  been  questioned,  whether  the  rule  against  admit- 
ting verbal  declarations  of  an  auctioneer  at  the  time  of  sale, 
in  contradiction  to  the  printed  particulars,  has  the  effect  to 
exclude  evidence  of  personal  information  as  to  a  mistake  in 
the  particular.^  So,  the  printed  conditions  of  sale  posted  up 
under  the  auctioneer's  box,  he  declaring  that  the  conditions 
are  as  usual,  are  sufficient  notice  to  purchasers  of  such  con- 
ditions.'* So,  the  auctioneer's  advertisement  may  be  ex- 
plained by  his  declarations  at  the  time  of  sale.^ 

53.  It  will  be  seen  hereafter,  that  part-performance  of  a 
verbal  contract  takes  it  out  of  the  operation  of  the  Statute 
of  Frauds.  (See  ch.  8.)  But  it  has  been  held,  that^payment 
of  the  auction-duty  is  not  such  a  part-performance  as  will 
have  this  effect.*^ 

54.  In  connection  with  the  subject  of  sales  by  auction,  may 
properly  be  considered  the  rights  and  liabilities  of  vendor  and 
purchaser,  with  reference  to  a  deposit.  A  deposit  is  the  pay- 
ment of  a  part — usually  a  small  part — of  the  price,  by  the 
purchaser ;  made  chiefly  for  the  purpose  of  binding  the  bar- 
gain. Occurring  for  the  most  part  in  sales  by  auction,  it 
naturally  forms  a  part  of  that  particular  title  in  the  law  of 
vendors  and  purchasers. 

55.  An  auctioneer  receiving  a  deposit  is  said  to  be  a  stake- 


1  Lessee  of  Wright  v.  Deklyno,  Pc-  *  Mcsnard  v.  Aklridge,  3  Esp.  Rep. 
ters'  Cir.  C.  199.     See  Wainwright  v.  271. 

Read,  1  Desaus.  .573.  ^  Rankin  v.  Matthews,  7  Ired.  286. 

2  Cannon  v.  Mitchell,  2  Desaus.  320.  ^  Buckmastcr  v.  Harrop,  7  Vcs.  341. 
2  Ogilvie  V.  Foljambe,  3  Meri.  53. 


CII.  VI.]  SALES    BY    AUCTION.  95 

holder,  not  the  agent  of  the  parties.  He  is  held  to  be  liable 
at  all  events,  till  the  contract  is  completed.  His  knowledge 
of  a  defective  title  is  equivalent  to  an  express  notice  not  to 
pay  over.  The  deposit  is  a  conditional  payment,  not  to  be 
parted  with  till  the  conditions  are  fulfilled.'  (a)  Hence,  if 
the  vendor  of  an  estate  by  auction  does  not  show  a  clear 
title  by  the  day  specified,  the  purchaser  may  recover  back 
his  deposit  and  rescind  the  contract.^  So,  where  an  auction 
purchaser  rescinds  the  bargain,  in  consequence  of  an  objec- 
tion to  the  title  and  concealment  of  material  facts,  he  may 
recover  a  deposit  from  the  auctioneer,  no  proof  being  offered 
that  it  has  been  paid  over  to  the  vendor.  The  auctioneer 
would  have  no  right  to  pay  it  over,  till  completion  of  the 

1  Edwards  v.  Hoddiiifr,  1  Marsh.  377;  "  Wilde  v.  Toote,  4  Taun.  334. 

Burrough  v.  Skinner,  5  Burr.  2639. 

(a)  Sale  of  houses  at  auction,  according  to  certain  particulai's  and  con- 
ditions, one  of  which  was,  that  an  abstract  of  title  be  delivered  within  ten 
days,  and  another,  that  a  deposit  be  paid  the  auctioneer.  A  purchaser  of 
two  houses  paid  the  deposits,*signed  an  agreement  as  purchaser,  and  took  a 
receipt  from  the  auctioneer,  as  for  payment  of  a  deposit  upon  the  auction 
sale  of  the  premises  named  in  the  particulars,  &c.  The  abstract  not  being 
delivered,  the  vendee  brings  an  action  against  the  auctioneer  for  his  deposit, 
and  offers  in  evidence  the  receipt  and  conditions  of  sale,  but  not  the  agree- 
ment signed  by  himself.  Held,  the  action  was  not  sustained.  Curtis  v. 
Greated,  3  Nev.  &  M.  449  ;  1  Ad.  &  Ell.  1G7. 

The  tide  of  an  estate  sold  at  auction  being  objected  to,  the  auctioneer 
I'efused  to  return  the  deposit,  and  was  compelled  to  pay  the  costs  of  a  suit 
brought  against  him.  Held,  he  could  not  recover  the  amount  from  the 
vendor,  in  an  action  for  money  paid,  but  must  declare  specially.  Spurrier 
V.  Elderton,  5  Esp.  1.     See  Mitchell  v.  Hayne,  2  Sim.  &  St.  63. 

If  an  auctioneer  deviate  from  the  strict  terms  of  the  conditions,  he  must 
personally  suffer  the  consequences;  being  liable  for  the  duties,  and  not 
entitled  to  maintain  any  action  against  the  vendee.  If  the  auctioneer  has 
fulfilled  his  duty,  he  may  maintain  assumpsit,  as  on  an  implied  promise, 
against  the  vendor ;  who  also  has  a  claim  upon  the  purchaser,  on  the  express 
ao-reement  arising  from  the  conditions  of  sale.  Jones  v.  Nanney,  13  Price, 
76.  As  to  the  general  rights  and  liabilities  of  an  auctioneer,  see  Ilex  v. 
Christie,  2  Anst.  586;  Hardacre  v.  Stewart,  5  Esp.  103  ;  Nelson  v.  Aldridge, 
2  Stark.  435;  BroAvn  t'.  Stadton,  2  Chit.  353. 


96  LAW   OF   VENDORS   AND   PURCHASERS.  [CII.  VI. 

sale.^  So,  an  auctioneer  received  a  deposit  from  the  pur- 
chaser, in  presence  of  the  vendor,  signed  an  agreement  ac- 
knowledging the  sale,  and  engaged  to  complete  it ;  but,  by 
reason  of  a  defect  in  the  title,  the  sale  was  not  completed. 
Held,  the  purchaser  might  recover  the  deposit  from  the  auc- 
tioneer, though  paid  over  to  the  vendor  before  discovery  of 
the  defective  title,  and  though  the  purchaser  had  given  him 
no  notice  against  paying  it  over.^ 

56.  The  net  amount  of  a  deposit  only,  without  interest, 
can  be  recovered  in  an  action  for  money  had  and  received.^ 
So,  where  an  auction  purchaser  paid  to  the  auctioneer  a 
deposit  as  part  of  the  price,  until  the  title  should  be  made 
out ;  held,  the  auctioneer  was  not  liable  for  iii^rest,  though 
four  years  had  elapsed  since  the  sale,  no  demami  of  payment 
having  been  made  upon  him.^  So,  an  auctioneer,  as  agent 
for  the  vendor,  agi*eed  to  sell  according  to  printed  conditions, 
by  which  the  purchaser  was  to  pay  down  a  deposit  and  the 
duty,  and  the  balance  of  the  price  at  a  certain  day,  upon 
receiving  a  good  title,  and  the  vendor  was  to  prepare  and 
deliver  to  the  vendee  an  abstract.  The  title  being  defective, 
and  the  sale  consequently  failing,  held,  the  auctioneer  was  a 
stake-holder,  and  not  liable  for  interest,  unless  the  money  had 
been  demanded,  or  notice  given  him  that  the  bargain  was 
rescinded.^ 

57.  All  matters  of  difference  between  two  parties  were 
referred  by  a  Judge's  order  to  arbitration,  and  an  agreement 
of  reference  entered  into,  in  which  one  of  them  was  described 
as  the  administrator  of  a  deceased  person,  late  owner  of  the 
leasehold  premises,  the  right  to  which  was  in  dispute.  It 
was  awarded,  that  the  premises  be  sold  by  an  auctioneer, 
whose  appointment  was  assented  to  by  both  parties.  The 
plaintiff,  the  attorney  of  one  of  the  parties,  who,  at  the  time 
of  the  sale,  was  aware  that  the  other  had  not  taken  out 

'  Burrough  v.  Skinner,  5  Burr.  2639.  *  Lee  r.  Mnnn,  1  Moore,  481. 

2  Gray  v.  Guttericlgc,  3  C.  &  P.  40.  ^  Gabv  v.  Driver,  2  You.  &  J.  549. 

3  Walker  v.  Constable,  1  Bos.  &  Pul. 
306. 


en.  vl]  sales  by  auction.  97 

administration,  became  the  pm*chascr,  and  paid  a  deposit  to 
the  auctioneer,  it  being  understood,  at  the  time  of  the  sale, 
that  administration  would  be  taken  out.  The  proposed 
administrator,  however,  afterwards  refused  to  do  so,  and  a 
good  title  was  not  made  out.  Held,  the  plaintiff  might  re- 
cover his  deposit  from  the  auctioneer,  without  notice  of  the 
contract  having  been  rescinded.^ 

58.  A.,  as  the  agent  of  the  defendant,  the  owner  of  land, 
enters  into  an  agreement,  with  penalty,  for  the  sale  of  it, 
with  B.,  who  appears  to  act  on  his  own  account,  but  in  fact 
is  the  agent  of  the  plaintiff,  and  B.  pays  part  of  the  purchase- 
money  as  a  deposit.  Held,  upon  a  breach  of  the  conditions 
of  sale,  on  the  part  of  the  vendor,  an  action  for  money  had 
and  received  lies  to  recover  back  the  deposit,  without  proof 
of  the  money  being  paid  over  by  A.  to  the  defendant- 

59.  On  a  contract  for  purchase,  a  part  of  the  purchase- 
money  was  paid  as  a  deposit  to  the  vendor's  solicitor, 
who  paid  it  away  at  the  desire  of  the  vendor,  without  the 
concurrence  of  the  purchaser.  This  created  a  difficulty  in 
completing  the  purchase,  as  a  mortgagee  of  the  estate  would 
not  join  in  the  conveyance  without  payment  to  him  of  the 
deposit.  In  a  suit  by  the  purchaser  for  specific  perform- 
ance, the  solicitors  were  declared  liable  to  make  good  the 
money.^  , 

60.  An  attorney,  who  was  also  an  auctioneer,  received  a 
deposit  on  property,  which  he  had  sold  by  auction,  and,  after 
queries  raised  on  the  title,  and  before  they  were  cleared,  paid 
over  the  deposit  to  his  principal.  On  a  demand  of  the  de- 
posit by  the  buyer,  he  answered,  that  his  principals  would 
not  consent  to  return,  and  would  enforce  the  contract.  Held, 
the  buyer  might  recover  the  deposit  from  the  auctioneer  as 
money  had  and  received  to  the  plaintiff's  use  :  1,  because 
the  defendant,  as  attorney,  had  notice  that  the  title  had  not 
been  completed  before  he  paid  over  the  money  ;  2,  because 

1  Duncan  v.  Cafe,  2  Mees.  &  Wels.        -  The  Duke  of  Norfolk  v.  Worthy,  1 
244.  Campb.  337. 

i*  AViggins  v.  Lord,  4  Bear.  30. 

9 


98  LAW   OF   VENDORS.  AND   PURCHASERS.  [CII.  VI. 

he  misled   the   plaintilT  to   sue  him,  by  not  saying  he  had 
paid  it  ovor.^ 

61.  "Where  an  auctioneer,  against  whom  an  action  was 
brought  to  recover  the  deposit  upon  the  ground  that  the 
vendor's  title  was  defective,  applied  for  an  interpleader  rule, 
and  it  appeared  that  the  vendor  had  no  other  property,  the 
Court  refused  the  application,  unless  the  defendant  gave 
security  for  costs ;  and  refused  to  allow  the  defendant  his 
costs  of  the  application  out  of  the  deposit.^ 

62.  Where  the  vendor  of  an  estate  at  auction  is  unable  to 
make  a  good  title,  the  purchaser  cannot  recover  the  deposit 
from  him,  as  money  had  and  received,  though  paid  over  to 
him.  The  remedy  is  against  the  auctioneer,  who  is  the  agent 
for  both  parties,  to  appropriate  the  deposit  to  the  party  en- 
titled to  it.3 

63.  If  the  purchaser  demands  his  deposit  at  the  day  for 
completing  the  contract,  and  the  vendor  has  not  delivered 
his  abstract  before  that  time,  and  also  neglects  to  deliver  it 
until  after  an  action  brought  for  the  deposit,  it  is  evidence  of 
an  abandonment  of  the  contract  by  the  vendor ;  who  shall 
not  be  entitled  afterwards  to  a  specific  performance.'^ 

64.  If  a  party  has  given  a  bill  of  exchange  or  check  for 
the  amount  of  a  deposit  on  a  sale  by  auction,  any  ground  on 
which  he  could  recover  back  bis  deposit,  if  paid  in  money, 
will  be  good  ground  of  defence,  in  an  action  upon  the  bill 
or  check.^  A  party  gave  a  check  for  the  amount  of  a  deposit 
on  a  sale  by  auction,  which  sale  was  void.  In  an  action  on 
the  check,  he  pleaded  that  there  was  no  consideration  for  the 
check ;  and  the  plaintiff  replied,  that  there  was  consideration. 
Held,  on  this  issue,  the  defendant  must  begin.*^ 

65.  Relief  may  be  granted  against  forfeiture  of  the  deposit, 
upon  putting  the  other  party  in  the  same  situation  as  if  the 
contract  had  been  performed  at  the  time  agreed." 

1  Edwards  v.  Hoddiug,  5  Taunt.  815.  *  Lloyd  v.   Collctt,  4  Vcs.   690,  n. ; 

'■^  Dellcr  V.  Prickett,  2  Eng.  Law  &  Eadcliffc  v.  WarrinKton.  12  Ves.  376. 

Eq.  232.  s  Mills  v.  Oddy,  6'  Carr.  &  P.  728. 

^  Johnson  v.  Roberts,  30  Eng.  Law  ^  Ibid. 

&  Eq.  234.  T  Moss  V.  Matthews,  3  Ves.  279. 


CII.  VI.]  SALES   BY   AUCTION.  ,  99 

66.  A  purchaser  before  a  master,  submitting  to  forfeit  his 
deposit,  is  not  bound  to  proceed  in  the  purchase.' 

67.  The  Court  will  not  compel  a  vendor  to  pay  the  de- 
posit money  into  Court,  though  he  retains  possession  of  the 
estate,  if  the  delay  in  the  completion  of  the  contract  is 
occasioned  by  the  purchaser.- 

68.  A  vendor,  resisting  an  application  by  the  purchaser 
for  payment  into  Court  of  the  deposit,  in  the  hands  of  the 
vendor's  agent,  was  charged  with  a  loss  by  the  agent's 
failure.^ 

69.  Where  a  contract  for  the  sale  of  land  has  been  aban- 
doned, and  an  action  is  brought  for  the  deposit,  and  the 
plaintiff  declares  specially  on  the  contract,  he  must  prove  it 
to  have  been  a  valid  one,  by  a  note  in  writing,  even  though 
the  sale  was  by  auction.* 

70.  A  party  recovering  back  a  deposit,  paid  on  the  pur- 
chase of  real  property,  is  not  entitled  to  interest.^ 

71.  Sale  by  auction.  The  auctioneer,  as  agent  for  the 
vendor,  agrees  to  sell  according  to  the  conditions.  By  these, 
the  purchaser  is  to  pay  down  immediately  a  deposit,  and  the 
auction  duty,  and  the  residue  of  the  purchase-money  upon  a 
day  certain,  on  having  a  good  title  ;  and  the  vendor  is  to 
prepare  and  deliver  an  abstract.  Held,  the  auctioneer,  upon 
a  failure  of  the  contract  in  consequence  of  a  defective  title, 
is  not  personally  responsible  for  interest  upon  the  deposit 
and  auction  duty,  unless  the  money  be  demanded,  or  notice 
given  him  that  the  contract  has  been  rescinded.^ 

72.  Where  an  auctioneer  has  sold  an  estate,  the  title  of 
vyhich  being  objected  to,  he  refuses  to  return  the  deposit, 
and  an  action  is  brought,  in  which  he  afterwards  pays  the 
costs ;  he  cannot  recover  these  costs  against  the  principal 
in  an  action  for  money  paid  to  his  use,  but  must  declare 
specially." 

'   Savile  v.  Savile,  1  P.  Wms.  745.  ^  Bradshaw  v.  Bennet,  5  Car.  &  P.  48. 

2  W}-nne  v.  Griffith,  1  Sim,  &  St.  147.  *^  Gaby  i'.  Driver,  2  You.  &  Jerv.  549. 

3  Penton  v.  Browne,  14  Ves.  143.  ''  Spurrier  v.  Elderton.  5  Esp.  1. 
*  Waliicr  V.  Constable,  2  Esp.  659 ; 

1  Bos.  &  Pull.  306. 


100  LAW    OF   VENDORS    AND    PURCHASERS.  [CII.  VI. 

73.  An  auctioneer,  who  is  sued  for  a  deposit,  and  pays  it 
into  Court,  under  an  order  for  the  vendor  and  purchaser  to 
interplead,  is  entitled,  upon  the  termination  of  proceedings 
between  the  vendor  and  purchaser,  to  receive  his  costs  out  of 
the  deposit-money.i 

74.  In  assumpsit  by  vendee  against  vendor  to  recover  back 
a  deposit  paid  on  the  purchase  of  real  property,  the  defend- 
ant at  the  trial  produced  (under  a  notice  to  produce)  the 
agreement,  which  had  been  signed  at  the  foot  of  the  con- 
ditions of  sale.  Held,  that  it  was  not  necessary  to  call  the 
subscribing  witness  to  prove  the  execution  of  this  agree- 
ment.2 

1  Pitchers  v.  Ednev,  4  Binir.  N.  721.  -  Bradshaw  v.  Bennct,  5  Carr.  &  P. 

48. 


en.  VII.] 


STATUTE   OF   FRAUDS. 


101 


CHAPTER    VII. 


STATUTE    OF   FRAUDS. 


1.  Form  of  contracts  for  the  sale  and 
purchase  of  lands.     Statute  of  Frauds. 

2.  What  property  is  within  the  stat- 
ute ;  products  of  the  soil  ;  growing 
wood,  &c. 

7.  Other  property  connected  with  the 
realty. 

10.  Property  not  within  the  statute  ; 
products  of  the  soil,  &c. 

14.  Paper  securities  relating  to  land. 


15.  Agreement  as  to  houndan/. 

16.  "Whether  the  statute  api)lies  to  a 
claim  for  the  price. 

23.  Construction  of  the  statute  as  to 
the  form  of  executing  a  written  memo- 
randum ;  what  is  a  slgnin<j  ;  reference 
of  different  papers  to  each  other,  &c. 

40.  Form  of  pleading  or  relying  upon 
the  statute. 


1.  In  the  natural  order  of  subjects,  we  proceed  to  consider 
the  forms  in  which  contracts  for  the  sale  and  purchase  of 
lands  must  be  made,  {a)     By  the  common  law,  contracts 


(a)  With  regard  to  the  formalities  requisite  in  a  contract  for  the  sale  of 
lands,  such  contract  is  held  good  without  a  seal.  Worrall  v.  Munu,  1  Seld. 
•229. 

In  England,  questions  have  frequently  arisen,  with  regard  to  the  necessity 
and  effect  of  a  stamp,  in  contracts  of  this  nature. 

An  instrument,  purporting  to  be  a  receipt  for  purchase-money,  but  insuf- 
ficient, as  such,  for  want  of  a  stamp,  is  still  admissible,  it  seems,  as  evidence 
of  an  agreement  for  sale,  if  it  contain  the  requisite  terms.  Evans  v.  Prothero, 
13  Eng.  Law  and  Eq.  163.     See  Smith  v.  Wyley,  17  Eng.  Law  and  Eq.  49. 

A  receipt  for  purchase-money  has  been  allowed  to  be  stamped  as  an  agree- 
ment during  the  hearing.     Coles  v.  Trecothick,  9  Ves.  234. 

But  the  Court  cannot  sanction  an  agreement,  that  an  objection  for  want 
of  a  stamp  shall  be  waived ;  if,  therefore,  the  objection  comes  to  the  knowl- 
edge of  the  Court,  no  decree  will  be  made,  until  the  instrument,  duly 
stamped,  is  produced  to  the  registrar.  Owen  v.  Thomas,  3  Myl.  &  Kee.353. 
Where  the  same  paper  contains  two  different  contracts,  for  the  purchase 
of  different  lots,  by  different  persons ;  one  stamp  affixed  to  that  part  of  the 
paper  which  contains  the  contract  with  the  defendant,  and  to  which  the 
stamp  officer's  receipt  for  one  penalty  refers,  is  sufficient  for  such  contract. 
Powell  V.  Edmunds,  12  E.  6. 


9* 


102  LAW    OF   VENDORS   AND    PURCHASERS.  [CU.  VII. 

may  be  either  written  or  unwritten  ;  and  a  contract  for  the 
sale  of  land  docs  not  differ,  in  this  respect,  from  others.  But, 
by  an  English  statute,  29  Car.  11.  'eh.  3,  commonly  called 
the  Statute  of  Frauds,  which  has  probably  been  adopted, 
copied,  or  closely  imitated,  in  every  State  of  the  Union,  (a) 

(a)  It  is  said,  in  Kentucky,  the  decisions  of  the  courts  of  Great  Britain, 
upon  their  statute  against  frauds  and  perjuries,  arc  to  be  respected,  only  so 
far  as  they  enlighten  the  understanding  or  convince  the  judgment ;  not  as 
evidences  of  the  proper  construction  of  a  similar  statute  of  Kentucky. 
Grant  v.  Craigmilcs,  1  Bibb,  203. 

With  regard  to  the  general  purpose  and  policy  of  the  statute,  it  is  said  in 
a  recent  case  :  "  The  great  purpose  of  the  enactments  commonly  known  as 
the  Statute  of  Frauds,  is  to  guard  against  the  commission  of  perjury  in  the 
proof  of  certain  contracts.  This  is  effected  by  providing  that  mere  parol 
proof  of  such  contracts  shall  be  insufficient  to  establish  them  in  a  court  of 
justice.  In  regard  to  contracts  for  sales  of  goods,  one  mode  of  j^roof  ■which 
the  statute  adopts  to  secure  this  object,  is  the  delivery  of  part  of  the  goods 
sold.  But  this  provision  does  not  effectually  prevent  the  commission  of 
perjury;  it  only  renders  it  less  probable,  by  rendering  proof  in  support  of 
the  contract  more  difficult.  So,  in  regard  to  other  provisions  of  the  same 
statute  ;  perjury  is  not  entirely  prevented  by  them ;  the  handwriting  of  a  party 
to  be  charged,  or  the  agency  of  the  person  acting  in  his  behalf,  may  still  be 
proved  by  the  testimony  of  witnesses  who  swear  falsely.  Absolute  prevention 
of  perjury  is  not  possible."     Per  Bigelow,  J.,  Marsh  i-.  Hyde,  3  Gray,  332. 

It  is  also  said,  "  The  statute  dispenses  with  no  proof  of  co)isidcraiion  which 
was  previously  required,  and  gives  no  efficacy  to  written  contracts  which 
they  did  not  previously  possess.  Its  policy  is  to  impose  such  requisites  upon 
private  transfers  of  property  as,  without  being  hindrances  to  fair  transac- 
tions, may  be  either  totally" inconsistent  with  dishonest  projects,  or  tend  to 
multiply  the  chances  of  detection."  1  Greenl.  Ev.  §  262.  As  to  the  dis- 
tinction between  the  Statute  of  Frauds,  and  the  rule  of  common  laic,  which 
excludes  parol  evidence  concerning  written  contracts,  see  Cuff  v.  Penn,  1 
M.  &  S.  26. 

As  to  the  utility  and  proper  construction  of  the  Statute  of  Frauds,  eminent 
Judges  have  expressed  themselves  as  follows  :  Chief  Justice  Best,  says, 
(Proctor  V.  Jones,  2  C.  &  P.  534,)  "  The  Statute  of  Frauds  and  the  Statute 
of  Limitations  were  both  so  much  objected  to  when  they  were  passed,  that 
the  Judges  appeai'ed  anxious  to  get  them  off  the  statute-book.  But  in  later 
times,  they  have  become  desirous  to  give  them  their  full  effect.  I  think  the 
Statute  of  Frauds  is  a  good  and  wholesome  statute.  In  other  countries,  con- 
tracts are  made  in  writing."     Bayley,  J.,  says,  (Cai'ter  v.  Toussaint,  5  B.  & 


CH,  VII.]  STATUTE    OF   FRAUDS.  ♦  lOo 

contracts  for  the  sale  of  lands  are  required  to  be  in  writ- 
ing, (a)  The  words  of  the  English  statute  are  as  follows : 
"  No  action  shall  be  brought,  whereby  to  charge  any  person 


A.  859,)  that  the  Statute  of  Frauds  is  a  remedial  law,  and  the  Court  ought 
not  to  endeavor  to  strain  words  to  take  a  case  out  of  it.  Chief  Justice  Ab- 
bott says,  (Howe  v.  Palmer,  Tempest  v.  Fitzgerald,  3  B.  &  A.  323,  G83,) 
"  The  Statute  of  Frauds  was  made  for  wise  and  beneiScial  purposes,  and 
ought  to  be  construed  according  to  the  plain  meaning  of  the  legislature.  It 
is  a  highly  beneficial  and  remedial  statute."  Best,  J.,  says,  (Howe  v.  Palmer, 
3  B.  &  A.  326,)  so  far  from  being  disposed  to  restrain  the  provisions  of  this 
statute,  I  should  be  inclined  to  extend  them." — "  It  is  better  to  adhere  to  the 
words  of  the  statute,  unless  we  plainly  see  that  the  words  used  do  not 
express  the  meaning  of  the  legislature."  Lord  Kenyon  says,  (Chaplin  r. 
Rogers,  1  E.  194,)  it  is  of  great  consequence  to  preserve  unimpaired  the 
several  provisions  of  the  Statute  of  Frauds,  which  is  one  of  the  wisest  laws 
in  our  statute-book."  Weston,  J.,  says,  (Phillips  v.  IlunneweU,  4  Greenl. 
380,)  "  The  Statute  of  Frauds  is  a  veiy  beneficial  act ;  and  its  objects  are 
best  secured  by  adhering  strictly  to  its  provisions,  unless  in  cases  which 
clearly  do  not  fall  within  the  meaning." 

Whether  the  Statute  of  Frauds,  in  requiring  that  in  certain  cases  the 
"  agreement "  be  proved  by  writing,  requires  that  the  consideration  should 
be  expressed  in  the  writing  as  part  of  the  agreement,  is  a  point  which  has 
been  much  discussed,  and  upon  which  the  English,  and  some  American  cases, 
are  in  direct  opposition.  The  English  Courts  hold  the  affirmative.  See 
Wain  V.  Warlters,  5  E.  10  ;  reviewed  and  confirmed  in  Saunders  v.  Wake- 
field, 4  B.  &  Aid.  595.  And  their  construction  has  been  followed  in  New 
York;  Sears  v.  Brink,  3  Johns.  210 ;  Leonard  v,  Vredenburg,  8  Johns.  29. 
In  New  Hampshire,  in  Neelson  v.  Sanborne,  2  N.  Hamp.  414,  the  same 
construction  seems  to  be  recognized  and  approved.  But  in  Massachusetts, 
it  was  rejected  by  the  whole  Court,  upon  great  consideration,  in  Packard  v. 
Richardson,  17  Mass.  122.  So,  in  Maine,  Levy  v.  Merrill,  4  Greenl.  180  ; 
in  Connecticut,  Sage  v.  Wilcox,  6  Conn.  81  ;  in  New  Jersey,  Buckley  v. 
Beardsley,  2  South.  570;  and  in  North  Carolina,  Miller  v.  Irvine,  1  Dev.  & 
Batt.  103;  and  7iow  in  South  Carolina,  Fyler  v.  Givens,  Riley's  Law  Cas. 
56,  62,  overruling  Stephens  v.  Winn,  2  N.  &  McC.  372,  n.  ;  Wood- 
ward V.  Picket,  Dudley,  30.     See  also   Violet  v.  Patton,  5  Cranch,  142 ; 

(o)  Where  the  verbal  evidence  of  an  agreement  is  contradictory,  the 
Statute  of  Frauds  ought  especially  to  apply  against  it.  Rowton  v.  Rowton, 
1  Hen.&Munf.  92. 


104  .     LAW   OF   VENDORS   AND    PURCHASERS.  [CII.  VTI. 

upon  any  agreement  made  upon  any  contract  or  sale  of 
lands,  tenements,  or  hereditaments,  or  any  interest  in  or  con- 
cerning them,  unless  the  agreement,  upon  which  such  action 
shall  be  brought,  or  some  memorandum  or  note  thereof  shall 
be  in  writing,  and  signed  by  the  party  to  be  cliarged  there- 
with, or  some  other  person  thereunto  by  him  lawfully,  au- 
thorized." 

2.  The  statute  contemplates  a  transfer  of  lands,  or  some 
interest  in  them  ;  ^  and  one  of  the  questions  most  frequently 
arising  in  the  consti-uction  of  this  statute  is,  to  what  prop- 
erty it  applies  ;  or,  in  other  words,  what  are  lands  within  the 
meaning  of  the  statute.  This  question  has  for  the  most 
part  occurred,  with  reference  to  growing  and  movable  pro- 
ducts of  the  land,  which  are  attached  to,  though  not  strictly 
making  part  of,  the  soil. 

3.  It  has  been  held,  that  growing  trees  are  real  estate,  and 
cannot  pass,  except  by  an  instrument  in  writing.'-^  So,  where 
they  are  to  be  taken  by  the  purchaser  within  a  certain  time.^ 
Thus,  the  sale  of  growing  timber,  with  an  agreement  that 
the  purchaser  should  have  twenty-five  years  to  remove  it, 
was  held  within  the  statute,  upon  the  ground  that  it  pur- 
ported to  transfer  an  interest  in  land,  as  the  vendee  was  to 
have  the  timber  remain  and  grow,  if  he  pleased,  and  remove 
it  whenever  he  might  see  fit,  during  the  period  prescribed.* 

1  Bostwick  V.  Leach,  3  Day,  476.  ^  putney  v.  Day,  6  N.  H.  430. 

2  Pierrcpont  v.  Barnard,  5  Barb.  364.  *  Olmstcad  v.  Miles,  7  N.  H.  522 ; 
See  Burgett  v.  Bissell,  14  Barb.  638.  Green  v.  Armstrong,  1  Denio,  550.     See 


Taylor  r.  Ross,  3  Yerg.  330  ;  3  Kent's  Comm.  122  ;  2  Stark.  Evid.  350,  Gtli 
Am.  ed. ;  1  Greenl.  Ev.  §  268,  n.  3. 

It  has  been  held  in  California  that  a  parol  agreement  for  the  sale  of  land, 
made  before  the  adoption  of  the  common  law,  or  the  reenactment  of  the 
Statute  of  Frauds,  is  void,  unless  possession  be  taken,  or  part  payment 
made.     Harris  v.  Brown,  1  Cal.  98  ;  floen  v.  Simmons,  lb.  119. 

But  performance  will  be  decreed,  if  the  sale  is  in  pnesenti,  the  title- 
deed  delivered,  possession  taken,  and  valuable  improvements  made,  to  such 
an  extent  as  to  work  a  fraud  upon  the  vendee  if  his  title  should  fail.  Tohler 
V.  Folsom,  lb.  207.     See  Albert  v.  Koss,  5  Md.  66. 


CII.  VII.]  STATUTE  OF  FRAUDS.  105 

So,  it  is  held,  that  an  agreement  for  the  sale  of  growing  pears 
is  an  agreement  for  the  sale  of  an  interest  in  land,  because 
they  would  pass  to  the  heirs,  not  to  the  executor.^  So,  in 
case  of  a  verbal  purchase  of  a  growing  crop  of  grass,  with 
liberty  to  go  on  the  close,  for  the  purpose  of  cutting  and 
carrying  it  away ;  held,  the  purchaser  could  not  maintain 
trespass  against  the  seller,  for  taking  away  his  horse  and 
cart  from  the  close,  which  he  had  brought  there  for  the  pur- 
pose of  carrying  away  the  grass  ;  the  action,  in  substance, 
charging  the  defendant  on  the.  contract,  within  the  statute.^ 
So,  although  one  who  has  contracted  with  the  owner  of  a 
close,  for  the  purchase  of  a  growing  crop  of  grass  there,  to 
be  mown  and  made  into  hay,  has  such  an  exclusive  posses- 
sion, though  for  a  limited  purpose,  that  he  may  maintain 
trespass  qu.  cl.  against  any  person  entering  the  close  and 
taking  the  grass,  even  with  the  assent  of  the  owner ;  still, 
this  being  a  contract  or  sale  of  an  interest  in  or  concerning 
land,  it  may  be  discharged  by  parol  notice  from  the  owner, 
before  any  part  execution.^  So,  a  sale  of  growing  turnips, 
no  time  being  stipulated  for  their  removal,  and  the  degree  of 
their  maturity  not  being  positively  found,  is  a  sale  of  an 
interest  in  land,  and  must  be  in  writing.^  So,  the  sale  of 
growing  underwood,  to  be  cut  by  the  purchaser,  confers  an 
interest  in  land,  under  the  statute.^  (a) 

4.  Declaration  that  the  plaintiff  was  possessed  of  a  farm, 

Austin  r.  Sawyer,  9  Com.  39  ;    Whipple        ^  Crosby  r.  Wadsworth,  6  East.  610, 

I'.Foot,  2  Johns.  422;  Stewart  w.  Dou<^h-  (a  leading  case.)     See  Frear  v.  Harden- 

ty,  9  Johns.  112.  burgh,  5  Johns.  272. 

1  Rodwell  V.  Phillips,  9  M.  &  W.  501.         *  Emmerson  v.  Heelis,  2  Taunt.  38. 

-  Carrington  v.  Roots,  1  Mees.  &W.        ^  Scorell  v.  Boxall,   1  You.  &  Jerr. 

248.  396. 


(rt)  Verbal  sale  of  growing  wood,  by  the  defendant,  with  a  right  to  cut  it 
witliin  a  certain  time,  but  without  any  express  authority  to  assign  the  con- 
tract. The  purchaser  cut  part  of  the  wood,  left  it  on  the  land,  and  sold  it, 
with  all  his  rights  under  the  contract,  to  the  plaintiff,  whom  the  defendant 
authorized  to  remove  the  remaining  wood,  but  afterwards  revoked  the 
authority,  and  burned  the  wood.  Held,  he  was  liable  to  an  action  for  so 
doing.     Nelson  D.Nelson,  (Mass.)  Law  Rep.  Nov.  1856,  p.  411. 


lOG  LAW   OF   VENDORS   AND   PURCHASERS.  [CII.  VII. 

upon  which  were  growing  crops,  and  on  whicli  the  plaintiff' 
had  done  work  and  labor  and  expended  materials,  in  making 
the  lands  ready  for  tillage,  of  which  work  the  plaintiff'  had 
not  derived  the  benefit ;  and  that,  in  consideration  that  the 
plaintiff"  would  let  the  farm  to  the  defendant  for  fourteen 
years,  the  defendant  undertook  to  take  the  crops  and  pay  for 
them,  and  for  the  work,  according  to  a  valuation  ;  that  the 
plaintiff'  let  the  farm  accordingly,  and  left  the  crops  upon  it, 
and  the  defendant  took  possession  and  had  the  benefit  of  the 
work,  &c.,  and  the  valuation,  was  made,  but  the  defendant 
did  not  pay.  Plea,  that  the  crops,  and  the  benefit  of  the 
work,  &c.,  were  not  excepted  or  reserved  out  of  the  letting 
or  agreement  to  let,  and  there  was  no  agreement  in  writing 
in  respect  of  those  causes  of  action,  or  any  memorandum  or 
note  thereof,  signed  by  the  defendant  or  any  person  by  him 
lawfully  authorized.  Held,  on  demurrer,  that  the  contract 
was  for  an  interest  in  land,  and  the  right  to  the  crops,  and 
the  benefit  of  the  work  and  labor,  were  both  of  them  an 
interest  in  land,  within  the  4th  section  of  the  Statute  of 
Frauds.^ 

5.  Indebitatus  count,  for  crops  bargained  and  sold,  accepted 
and  taken,  had  and  received,  and  cut  down  by  the  defendant. 
Plea,  that  the  crops,  at  the  time  of  the  bargain  and  sale, 
were  growing  upon  and  affixed  to  certain  lands  ;  and,  before 
the  bargain  and  sale,  there  was  a  treaty  on  foot  between  the 
plaintiff"  and  the  defendant,  pro|>osing  that  the  plaintiff"  should 
let  the  lands  to  the  defendant,  and  the  defendant  take  there- 
with the  crops ;  that  the  defendant  assented  to  the  treaty ; 
and,  in  order  to  carry  it  into  eff'ect,  the  supposed  bargain  and 
sale  was  verbally  contracted ;  and  there  was  no  agreement 
in  writing,  or  any  memorandum  or  note  thereof.  Held,  the 
crops  were  at  the  time  of  the  bargain  and  sale  an  interest 
in  the  land,  and  the  case  was  within  the  statute.  And  the 
same  point  was  held,  on  a  similar  plea,  to  a  count  for  work, 
labor,  and  materials.^ 

1  Falmouth  v.  Thomas,  I  Cromp.  &  Mees.  89.  -  Ibid. 


CH.  VII.]  STATUTE  OF  FRAUDS.  107 

6.  Indebitatus  assumpsit  upon  an  account  stated.  Plea, 
that,  before  the  taking  of  the  account,  there  was  a  verbal 
agreement  for  the  sale  of  crops  growing  upon  the  plaintiff's 
land,  and  for  work,  labor,  and  materials,  done  and  used  in 
preparing  the  land  for  tillage  ;  and  a  treaty  for  the  plaintiff's 
letting  and  the  defendant's  taking  the  land  for  fourteen  years, 
to  which  the  defendant  assented  ;  and  that  the  money  to  be 
paid  for  the  crops,  and  the  work,  &c.,  was  the  money  con- 
cerning which  the  account  was  stated;  and  there  was  no 
agreement  in  writing,  nor  any  -note  thereof.  Replication, 
that  before  the  account  was  stated,  the  defendant  had  mown 
the  crops,  and  taken  them  to  his  own  use,  and  had  and  re- 
ceived the  amount  of  the  work  and  labor  and  materials. 
Rejoinder,  traversing  that  defendant  had  cut  down  the  crops, 
and  received  the  amount  of  the  work  and  labor,  &c.,  before 
the  stating  of  the  account.  General  demurrer:  Held,  the 
contract,  as  appearing  on  the  pleadings,  was  within  the 
statute,  and  the  plaintiff  could  not  recover.^ 

7.  The  same  question  has  arisen,  and  the  same  rule  been 
adopted,  in  reference  to  other  kinds  of  property,  not  being 
strictly  real  estate,  but  partaking,  more  or  less,  of  the  charac- 
ter of  chattels. 

8.  Declaration  in  assumpsit,  that  the  plaintiff  was  de- 
sirous of  taking  a  furnished  house  as  a  school ;  that  the 
defendan^vas  possessed  of  a  house  in  part  furnished,  and 
all  other  furniture  necessary  for  the  completely  furnishing 
the  same,  and  thereupon,  in  consideration  that  the  plaintiff, 
at  the  request  of  the  defendant,  would  take  possession  of 
said  house,  and  would,  if  the  furniture  necessary  for  the 
completely  furnishing  said  house,  for  the  purpose  aforesaid, 
should  be  sent  into  said  house  by  the  defendant,  within  a 
reasonable  time,  become  the  tenant  of  the  house,  with  the 
furniture,  at  the  rent  aforesaid,  and  pay  the  rent  quarterly, 
commencing,  &c.,  the  defendant  promised  the  plaintiff  that 
he  would,  within  a  reasonable  time,  after  the  plaintiff  should 

1  Falmouth  i'.  Thomas,  1  Cromp.  &  Mees.  89. 


108  LAW   OF   VENDORS   AND   PURCHASERS.  [ciI.  VII. 

have  so  taken  possession,  send  into  the  house  all  the  fur- 
niture necessary  for  furnishing  the  house  with  furniture  of 
good  quality.  That  the  defendant  took  possession  of  the 
house,  but  the  articles  of  furniture  sent  were  not  of  good 
quality,  and  all  the  furniture  necessary  for  the  furnishing  was 
not  sent  in.  Plea,  that  there  was  no  note  or  memorandum 
in  writing  of  the  promise  stated.  Held,  on  demurrer,  that 
the  promise  related  to  land,  and  no  action  could  be  main- 
tained upon  it.^  (a) 

9.  The  statute  applies  to  a  contract,  for  the  sale  of  a  "  right 
to  dig  and  carry  away  ore"  from  the  mine  of  another  person.'^ 
But  a  verbal  contract  for  such  right  is  valid  as  a  license,  and 
a  protection  to  the  party  acting  under  it,  and  vests  in  him  a 
title  to  the  ore  actually  taken.^  But  the  license  is  revocable, 
personal,  and  not  assignable,''  (Seech.  8.)  So,  a  right  of  per- 
manently overflowing  the  land  of  another,  by  a  mill-dam  to  be 
constructed  below  his  line,  is  a  hereditament ;  and  a  contract 
for  the  sale  of  it  must,  therefore,  be  in  writing.^  So,  a  con- 
tract made  by  an  owner  of  land  with  the  commissioners, 
under  the  act  relative  to  draining  the  drowned  lands  in  Orange 
County,  (Sess.  30,  ch.  25,)  by  which  they  were  allowed  to 
use  each  bank  of  the  River  Wallkill,  &c.,  which  they  might 
find  necessary,  in  removing  all  obstructions,  and  in  deepen- 
ing and  widening  the  river,  &c.,  and  to  use,  occupy,  and 

1  Mechelen  V.  Wallace,  2  Ney.  &  PeiT.         "Ibid.  *  Ibid. 

224  ;  7  Ad.  &  Ell.  49.  5  Bridges  v.  Purcell,   I   Dcv.  &  Bat. 

■■^  Riddle  v.  Brown,  20  Ala.  412.      ,      192  ;  Harris  v.  Miller,  1  Meigs,  158. 


(a)  A  parol  contract  for  the  sale  of  both  real  and  personal  property,  if 
entire,  and  founded  on  one  consideration,  being  void  as  to  the  former,  is 
void  for  the  whole.  So  held,  in  case  of  the  sale  of  Avood  or  timber  compos- 
ing a  broken-down  mill  in  connection  with  the  mill-site,  &c.  Thayer  v. 
Rock,  13  Wend.  53. 

Contract  to  hire  a  shop  at  a  certain  rent,  and  pay  the  landlord  the  ex- 
pense of  fitting  it  up.  Held,  an  entire  contract,  and  within  the  Statute  of 
Frauds,  as  it  concerned  an  interest  in  lands.  M'MuUen  v.  Riley,  (Mass.) 
Law  Rep.  Dec.  1856,  p.  439. 


CII.  VII.]  STATUTE  OP  FRAUDS.  109 

enjoy  the  same,  and  for  which  they  were  to  pay  a  compen- 
sation to  the  owner  for  the  damages,  and  who  agreed  to 
allow  them  to  cut  a  canal  through  his  lands,  was  held  to  be  a 
contract  concerning  an  interest  in  lands,  within  the  statute.^ 
So,  in  New  York,  the  statute  applies  to  the  sale  of  a  ^^ew;.^ 
So,  the  statute  has  been  held  to  apply  to  the  sale  of  a  lease- 
hold interest.  Thus,  an  agreement  by  a  tenant  for  a  sale  and 
delivery  of  the  premises,  the  purchaser  agreeing  to  pay  the 
rent,  rates,  and  taxes,  is  within  the  statute.^  So,  a  claim  for 
specific  performance  stated,  that  the  defendant  had  agreed  in 
writing,  to  demise  a  house  to  the  plaintiif,  for  a  certain  term 
and  rent,  and  that  the  plaintiff  at  the  same  time  agreed  by 
parol  to  pay  the  plaintiff  a  premium  of  X200  ;  and  prayed 
that  a  lease  be  granted,  offering  to  pay  the  premium.  Claim 
dismissed.^  So,  A.  and  B.  severally  negotiating  to  purchase 
a  house  and  land  agreed  by  parol,  that  A.  should  withdraw 
and  B.  purchase,  giving  to  A.  a  part  of  the  ground,  at  a 
proportionable  price.  B.  purchased,  but  refused  to  perform 
the  agreement.     Held,  within  the  statute.^ 

10.  With  reference,  however,  to  the  sale  of  things  grow- 
ing upon  the  land,  decisions  have  been  made,  somewhat  con- 
flicting with  those  already  cited.^  (a)     In  general  terms,  it 

'  Phillips  V.  Thompson,  1  Johns.  Ch.  ^  Lamas  v.  Bayly,  2  Vern.  G27. 

131.  ''  Jenkcs  v.  White,  14  Eng.  Law  & 

'^  Vielie  v.  Osgood,  8  Barb.  130.  Eq.  350;  Sweeny  v.  Miller,  34  Maine, 

3  Smart  v.  Harding,  29  Eng.  Law  &  388  ;  Preble  v.  Baldwin,  6  Cush.  549 ; 

Eq.  252.  Parker  r.  Staniland,  11  E.  362. 

*  Martin  v.  Pycroft,  1 1  Eng.  Law  &  • 
Eq.  110. 

(a)  It  is  said,  "  No  general  rule  is  laid  down  in  any  one  of  them,  that  is 
not  contradicted  by  some  others."  Per  Ld.  Abinger,  Rodwell  v.  Phillips,  9 
M.  &  W.  505.  The  distinction  upon  this  point  has  been  supposed  to  depend 
on  the  question,  whether  the  subject  of  contract,  being  part  of  the  inherit- 
ance, is  to  be  severed  and  delivered  by  the  vendor  as  a  chattel ;  or  whether 
a  right  of  entry  is  given  to  the  purchaser  to  cut  and  take  the  property ;  the 
4th  section  of  the  statute  being  applicable  to  the  latter  case,  but  not  to  the 
former;  which,  however,  would  fall  within  the  17th  section,  relating  to  the 
sale  of  goods:  Long  on  Sales,  (Rand,)  80-1.  But  it  is  said,  the  later 
English  and  the  American  authorities  do  not  seem  to  recognize  such  dis- 
tinction. 

10 


110  LAW    OP    VENDORS    AND    PURCHASERS.  [ciI.  VIT. 

is  said,  a  contract  for  the  sale  of  things  annexed  to  th(3  free- 
hold, but  which  are  capable  of  separation  without  violence, 
and  by  the  terms  of  the  contract  are  to  be  separated,  is  not 
within  the  statute.^  So,  it  is  said,  a  contract  for  the  sale  of 
a  growing  crop,  for  example,  a  crop  of  potatoes,  is  essen- 
tially the  same,  whether  they  are  covered  with  earth  in  a 
field,  or  stored  in  a  box  ;  in  either  case,  the  thing  sold  is  but 
a  personal  chattel,  and  so  not  within  the  statute.^  So  it  has 
been  held,  that  a  contract  for  the  sale  of  growing  wood  and 
timber,  to  be  cut  and  removed  by  the  purchaser,  is  not  within 
the  statute ;  the  effect  of  it  being,  to  pass  an  interest  in  the 
trees  when  severed,  but  not  any  interest  in  the  land.^  So, 
an  agreement  for  the  sale  of  mulberry  trees,  growing  in  a 
nursery,  and  raised  to  be  sold  and  transplanted,  and  to  be 
delivered  on  the  ground  where  they  are  growing,  on  payment 
being  made.^  So,  an  agreement  that  a  person,  not  the  owner 
of  the  land,  may  cut  down  the  trees,  peel  them,  and  take  the 
bark.^  So,  grass  already  grown  and  in  a  condition  to  be 
cut  may  be  sold  by  parol.^  (a) 

11.  Plaintiff  and  defendant  orally  agreed  (in  August)  that 
defendant  should  give  <£45  for  the  crop  of  corn  on  plaintiff's 
land,  and  the  profit  of  the  stubble  afterwards  ;  that  plaintiff's 
cattle  might  run  with  defendant's ;  that  defendant  should 
have  some  potatoes  growing  on  the  land,  and  whatever  lay 
grass  was  in  the  fields  ;  should  harvest  the  corn  and  dig  up 
the  potatoes ;  and  plaintiff  pay  the  tithe.     Held,  not  a  con- 

1  Bostwick  V.  Leach,  3  Day,  476.  *  Whitmarsh  v.  Walker,  1  Met.  313. 

2  Warwick  v.  Bruce,  2  M.  &  S.  205.  &  Nettleton  v.  Sikcs,  8  Met.  34. 

3  Claflin  V.  Carpenter,   4  Met.  580;  "  Cutler  v.  Pope,  13  Mai7ie,  380. 
Cain   V.   M'Guire,    13    B.    Mon.   340; 

Erskine  i:  Plummer,  7  Greeul.  447. 


(a)  Agreement,  for  the  purchase  of  the  herbage  of  a  close  for  five  months, 
for  £45  ;  £10  to  be  paid  down,  and  a  joint  promissory  note  given  for  the 
residue,  payable  within  the  five  months ;  the  lessee  to  yield  up  possession  at 
the  end  of  that  time,  and,  if  he  failed  to  give  a  satisfactory  note,  the  vendor 
to  be  at  liberty  to  relet  the  premises.  Held,  sufficiently  stamped  with  a  £l 
stamp.     Cattle  v.  Gamble,  5  Bing.  N.  R.  4G. 


CH.  VII.]  STATUTE    OF   FRAUDS.  ,  111 

tract  for  any  interest  in  land,  but  a  sale  of  goods  and  chattels, 
as  to  all  but  the  lay  grass  ;  and,  as  to  that,  a  contract  for  the 
agistment  of  defendant's  cattle.^  So,  where  the  defendant, 
in  June,  agreed  to  sell  to  the  plaintiff  the  potatoes  then 
growing  on  land  of  the  defendant  at  2s.  per  sack,  the  plain- 
tiff to  have  them  at  the  digging  up  time,  (October,)  and  to 
find  diggers ;  held,  not  a  contract  for  the  sale  of  an  interest 
in  land.^  So,  a  verbal  agreement,  made  on  the  25th  of  Sep- 
tember, for  the  sale  of  a  then  growing  crop  of  potatoes,  is 
not  a  contract  or  sale  of  any  lands,  tenements,  or  heredita- 
ments, or  any  interest  in  or  concerning  them.^  So,  the  plain- 
tiff verbally  agreed  with  the  defendant,  to  sell  him  the  timber 
growing  on  his  land  at  so  much  per  foot.  Defendant  after- 
wards offered  to  sell  the  butts  of  the  trees  to  a  third  person, 
and  said  he  would  convert  the  tops  into  building  stuff. 
Plaintiff  afterwards,  by  letter,  required  defendant  to  pay  for 
the  timber  which  he  had  bought  of  him.  Defendant  wrote 
a  letter  in  answer,  stating  that  he  had  bought  the  timber,  but 
that  he  had  bought  it  to  be  sound  and  good,  and  it  was  not 
so.  Held,  the  contract  was  not  a  contract  for  the  sale  of 
lands,  tenements,  or  hereditaments,  or  any  interest  in  or 
concerning  the  same,  within  the  statute.* 

12.  Assumpsit,  for  goods  sold,  and  on  an  account  stated, 
to  recover  the  value  of  growing  poles,  purchased  from  the 
plaintiff  by  the  defendants,  and  afterwards  carried  away  by 
them.  At  the  time  of  the  bargain,  some  memorandums  in 
writing  had  been  made,  but  neither  stamped  nor  signed. 
The  defendants,  after  the  poles  were  carried  away,  admitted 
that  a  balance  was  due  to  the  plaintiff.  Held,  a  nonsuit  was 
rightly  ordered,  as  the  defendants  had  not  admitted  a  precise 
and  definite  sum  to  be  due  to  the  plaintiff,  and  therefore  he 
could  not  recover  on  the  account  stated,  without  reference  to 
the  memorandums,  which  were  not  admissible  in  evidence ; 
but,  as  the  contract  had  been  executed  by  the  defendants, 

'  Jones  V.  Flint,  10  Ad.  &  Ell.  7.5-3.  ^  Evans  v.  Roberts,  5  Barn.  &  Cress. 

^  Sainsbury  r.  Matthews,  4  T^Iees.  &     829. 
Wels.  34.3.  *  Smith  v.  Surman,  9  Barn.  &  Cress. 

566. 


112  LAW    OF   VENDORS    AND   PURCHASERS.  [cil.  VIT. 

they  liaving  carried  away  the  poles,  the  Court  granted  the 
plaintiiV  a  new  trial,  on  payment  of  costs.^ 

13.  A  parol  contract  for  the  sale  of  improvements  on  the 
public  lands  is  valid.^  So  a  contract  for  the  sale  of  improve- 
ments on  land,  consisting  of  houses,  is  not  within  the  stat- 
ute.*'  Nor  an  agreement  by  a  tenant  at  will  to  transfer  his 
title,  as  he  has  no  assignable  interest.*  Nor  an  agreement 
not  to  exercise  a  right  regarding  the  freehold,  as  to  use  a  mill, 
or  to  carry  on  a  trade  in  a  particular  shop.^ 

14.  The  question  has  arisen,  whether  the  statute  applies 
to  the  transfer  of  paper  securities,  relating  to  the  title  to 
lands.  It  has  been  held,  that  a  contract  for  the  sale  of  a  bond 
secured  by  mortgage  of  lands  is  within  the  statute.^  So,  a 
parol  agreement  to  execute  a  covenant  to  convey  is  within 
the  statute.^  More  especially  at  law.^  So,  where  the  de- 
fendant contracted  in  writing  to  purchase  land  at  a  certain 
price,  and  the  plaintiff,  by  parol,  agreed  with  the  purchaser 
to  purchase  his  interest  in  the  contract,  and  the  latter,  by 
an  indorsement  on  the  contract,  ordered  the  vendor  to  con- 
vey to  the  plaintiff;  held,  the  plaintiff  could  not  maintain 
an  action  against  the  defendant.^  But  an  agreement  to 
locate  land  certificates  and  procure  patents,  in  consideration 
of  a  good  title  to  half  the  land,  is  not  within  the  statute.^" 

15.  The  statute  applies  to  a  parol  agreement  to  straighten 
a  crooked  line,  up  to  which  the  party  has  occupied  long 
enough  to  give  him  a  possessory  title.^^ 

16.  The  question,  whether  a  contract  is  within  the  statute, 
has  more  commonly  arisen  with  reference  to  the  liability  of 
the  vendor ;  but  sometimes,  in  connection  with  a  claim  for 
the  price,  against  the  vendee,  [a) 

1  Teall  V.  Auty,  4  Moo.  542.  "^  Lcdford  v.  Ferrell,  12  Ircfl.  285. 

2  Zickafosse  ?>.  Hulick,  1  ]\Iorr.  175.  «  Yates  v.  Martin,  1  Chandl.  US. 

3  Cassell  V.  Collins,  23  Ala.  676.  '■'  Simms  v.  Killian,  12  Ircd.  252. 

*  Whittemorc  v.  Gibbs,  4  Fost.  484.  ^  Watkins  v.  Gilkerson,  10  Tex.  340. 

5  Bos<:wick  v.  Leach,  3  Day,  476.  See  Maxwell  i'.  Wallace,   1  Bush.  Eq. 

«  Toppin  V.  Lomas.  30  Eng.  Law  &  251. 

Eq.  426.  "  Davis  v.  Townsend,  10  Barb.  333. 

(n)  The  statute  does  not  apply  to  an  action  relating  merely  to  the  price 
of  land.     Thaver  v.  Viles,  23  Verm.  494. 


ClI.  VII.]  STATUTE   OF   FRAUDS.  113 

17.  Upon  this  subject,  it  is  held,  that  in  order  to  recover 
the  price  of  land  sold,  there  must  be  a  contract,  subscribed 
by  the  vendor,  and  assented  to,  or  accepted  by  the  purchaser.' 
So,  no  action  lies,  for  the  price  of  land  sold  by  parol  con- 
tract, no  part  of  it  having  been  paid,  nor  possession  taken, 
though  a  deed  hae  been  tendered  by  the  seller,  but  not  ac- 
cepted.2 

18.  The  plaintiff  verbally  sold  to  the  defendant  his  interest 
in  a  farm,  the  defendant  agreeing  to  "  step  into  his  shoes," 
and  clear  him  of  certain  mortgage  notes,  and  of  a  note  for 
$50,  made  to  the  mortgagee,  with  surety,  and  indorsed  upon 
the  mortgage  note  as  part  payment.  The  defendant  entered, 
and  six  years  after  the  sale,  the  plaintiff  paid  half  the  $50 
note  and  costs,  and  brings  this  action  therefor.  Held,  as  the 
defendant  was  not  legally  bound  by  the  contract,  it  being  a 
contract  for  the  sale  of  lands,  within  the  Statute  of  Frauds, 
the  action  did  not  lie.^ 

19.  A  purchaser  of  land  under  incumbrance,  who  receives 
a  conveyance  without  covenants,  cannot  set  up  a  concurrent 
parol  agreement  on  the  part  of  the  grantor  to  pay  off  the 
incumbrances ;  for  such  agreement  is  parcel  of  an  entire 
agreement  for  the  sale  of  lands.^  So,  where  A.  sold  land  to 
B.,  and  gave  his  bond  to  make  title,  on  B.'s  verbal  promise 
to  pay  a  debt,  which  A.  owed  to  C. ;  held,  this  was  not 
void  by  the  statute,  as  a  promise  to  pay  the  debt  of  a  third 
person,  but  was  void  as  a  contract  for  the  sale  of  real  estate.'' 
So  it  has  been  held,  that  a  note  or  memorandum  is  insuf- 
ficient, unless  it  furnish  evidence  of  price,  and  the  amount 
thereof,  this  being  an  essential  part  of  the  contract.*^  There- 
fore a  letter  written  by  the  purchaser,  subsequent  to  a  sale 
by  auction,  and  addressed  to  the  vendor,  will  not  take  the 
case  out  of  the  statute,  if  it  only  contain  a  statement  of  the 
contract  for  the  purchase,  but  exhibit  no  particular  of  the 

'  Reynolds  v.  Dunkirk,  &c.  17  Barb.  *  Duncan  v.  Blair,  5  Denio,  196. 

613.  5  Rice  17.  Carter,  11  Ired.  298. 

^  Lester  v.  Bartlctt,  2  Cart.  G28.  ^  Idc  v.  Stanton,  15  Verm.  685. 
3  Davis  V.  Fan-,  26  Verm.  592. 

10* 


1 1  4  LAW   OF   VENDORS   AND    PURCHASERS.  [cil.  VII. 

price,  nor  refer  to  any  other  writing  wliich  does  so.  So, 
thougli  tlie  letter  refer  to  certain  notes,  tendered  in  payment, 
which  notes  are  not  before  the  Court.^ 

20.  But  a  promise  by  the  purchaser  of  land,  at  the  time 
of  the  conveyance,  to  pay  the  taxes  that  are  or  may  be 
assessed  thereon,  for  the  current  year,  is  not  "  a  contract  for 
the  sale  of  lands,  &c.,  or  of  any  interest  in  or  concerning 
the  same."  ^  So,  where  A.,  who  had  mortgaged  land  to  B., 
sold  the  land  to  C,  on  the  parol  agreement  that  C.  should 
pay  the  mortgage  debt,  and  that  B.  should  release  his  mort- 
gage. Held,  the  promise  of  C  was  not  within  the  statute.^ 
So,  A.  promised  B.  to  pay  him  $1,000  at  his  death,  if  he 
would  sell  his  estate  and  purchase  his  own  farm  at  a  stipu- 
lated price,  and  come  and  reside  there.  B.  did  sell  his  farm, 
and  bought  A.'s  farm,  and  removed  there  with  his  family. 
Held,  the  promise  was  not  within  the  statute.^  So,  A.  en- 
tered on  B.'s  land,  and,  without  his  knowledge  or  authority, 
cleared  it,  made  improvements,  erected  buildings,  &c.  B. 
afterwards  agreed  by  parol  with  A.,  (against  whom  he  had 
brought  an  ejectment  for  possession,)  that  he  would  sell 
the  land  to  A.  as  wild  land,  or  pay  him  for  the  improve- 
ments. Held,  though  the  promise  to  sell  was  void,  the 
promise  to  pay  for  the  improvements  was  not  within  the 
statute,  though  void  for  want  of  consideration.^  So,  where 
one  in  possession  of  land,  on  which  he  had  made  improve- 
ments, agreed  to  transfer  it ;  and  the  purchaser  verbally 
promised  to  pay  for  the  improvements ;  held,  the  promise 
was  not  within  the  statute.^  So,  the  plaintiff  conveyed  to 
the  defendant  a  tract  of  land,  as  containing  110  acres,  at  $8 
per  acre ;  with  a  verbal  agreement  for  a  survey,  and,  if  there 
proved  to  be  less  than  110  acres,  the  plaintiff  should  refund, 
if  more,  the  defendant  should  pay  at  the  same  rate  for  the 
surplus.     Held,  not  within  the  statute,  and  that  there  was  a 

'  Adams  v.  M'Millan,  7  Port.  73.  *  King  v.  Hanna,  9  B.  Mon.  369. 

-  Brackett  v.  Evans,  1  Cush.  79.  ^  Frear  v.  Ilardenbergli,  5  Johns.  272. 

3  Simonton  v.  Gandolfo.  2  Florida,  "  Benedict  u.  Becbce,  11  Johns.  145. 
392. 


cu.  vil]  statute  of  frauds.  115 

sufficient  consideration  for  the  promise  of  the  defendant.' 
So,  extrinsic  evidence  may  be  offered  of  the  pricq  paid,  where 
the  instrument  or  memorandum  is  certain  and  unambiguous.^ 
So,  a  letter,  promising  to  make  a  deed  of  land  "  according  to 
contract,"  is  sufficient,  though  the  terms  are  not  mentioned, 
if  the  party  claiming  the  conveyance  can  prove  the  price  by 
one  witness.^  So,  a  receipt  for  the  purchase-money  may 
constitute  a  sufficient  agreement,  provided  it  show  on  its 
face,  or  by  reference  to  some  other  instrument,  every  material 
part  of  a  valid  contract.'^  So,  a  receipt,  acknowledging  pay- 
ment of  money,  in  these  words :  "  In  part-payment  of  the  tract 
of  land  that  I  was  interested  in,  and  sold  by  the  sheriff,  and 
purchased  by  Col.  C.  L.  Goodwin,  and  which  land  was  sold 
by  C.  L.  Goodwin  to  Benj.  Hatcher  ;  this  is  in  part-payment, 
to  redeem  the  said  land  from  Benj.  Hatcher,"  was  held  a  suf- 
ficient memorandum  of  the  agreement.^  So,  where  there  was 
a  parol  agreement,  that  one  party  should  hold  an  estate,  and 
reconvey  to  the  other  on  payment  of  the  purchase-money 
and  interest ;  held,  that  credits  and  charges  on  the  books  of 
the  former  in  regard  to  the  estate,  and  conformable  to  the 
agreement,  were  sufficient  to  take  the  case  out  of  the  statute.'^ 
21.  The  plaintiff  and  defendant  enter  into  an  indenture, 
in  which,  after  a  recital  that  they  are  "  in  possession  and 
improvemeat,  and  are  principal  owners  of  a  certain  water 
privilege  with  the  buildings  thereon,  machinery,  fixtures,  &c.," 
the  plaintiff  agrees  to  convey,  and  the  defendant  to  receive 
and  pay  for,  "  all  the  plaintiff's  right,  &c.,  of  the  above  de- 
scribed premises,  consisting  of,  &c.  ;  also  the  saw  mill,  with 
every  privilege,  &c,"  at  such  prices  as  shall  be  awarded  by 
three  men,  to  be  chosen,  &c.,  and  for  the  fulfilment  of  the 
agreement  they  bind  themselves,  each  to  the  other,  under  the 
penalty  of  $1,000,  &c.     A  price  having-  been  fixed  by  such 


'  Garret  v.  Malone,  8  Eich.  335.  *  Barickman  f.Kuykciidall,  G  Blackf. 

■■^  Hatcher  v.  Hatcher,   1   McM.  Eq.     21. 
311,318.  ^  Hatcher  v.  Hatcher,  1  McMul.  Eq. 

3  Johnson  i'.  Ronald,  4  ]\Iunf.  77.  311. 

«  Tufts  V.  Tufts,  3  W.  &  M.  456. 


116  LAW    OF    VENDORS   AND    I'UHCIIASERS.  [cH.  VII. 

referees,  held,  (lie  defendant  could  not  object,  tliat,  by  the 
Statute  of  ^f'rauds,  the  indenture  was  invalid,  because  the 
referees  and  the  price  were  not  ascertained  by  the  indenture 
itself.i 

22.  A  contract  for  the  sale  of  lands,  signed  and  sealed  by 
the  vendor  only,  and  delivered  to,  and  accepted  by  the  ven- 
dee, purported  to  contain,  on  the  part  of  the  latter,  a  cov- 
enant to  pay  the  consideration  money  ;  and  was  recognized 
and  ratified,  on  the  part  of  the  vendees,  by  an  indorsement 
under  their  hands  and  seals.  Held,  a  sufficient  signing ;  and 
the  indorsement  not  containing  in  itself,  or  amounting,  when 
taken  in  connection  with  the  original  contract,  to  a  covenant 
to  pay,  and  the  vendor  having  tendered  a  conveyance  ;  held, 
he  might  maintain  indebitatus  assumpsit  for  the  consideration. 
But  if  the  indorsement  had  amounted  to  a  covenant  to  pay, 
the  action  must  have  been  covenant  or  debt.^ 

23.  The  question  has  often  been  raised,  whether  a  strict 
and  literal  .comTpYmnce  with  the  requirements  of  the  Statute 
of  Frauds  is  necessary  to  the  validity  of  a  contract,  relating 
to  the  sale  of  lands.  Upon  this  subject,  it  is  held,  as  the 
prevailing  doctrine,  that  a  liberal  construction  is  to  be  given 
to  the  statute  ;  and,  where  an  agreement  has  been  reduced  to 
a  certainty,  and  the  substance  of  the  statute  complied  with 
in  the  material  part,  the  forms  have  never  been  insisted 
upon.^  (a)  Thus,  a  written  admission  of  a  previous  parol 
contract  is  sufficient.*  It  is  also  held,  that  a  memorandum 
in  writing  of  the  sale  of  lands  will  be  sufficient  within  the 
statute,  if  it  be  signed  by  the  party  to  be  charged,  more 
especially  when  followed  by  a  direction  to  the  attorney  to 

'  Brown  v.  Bellows,  4  Pick.  179.  ^  AVelford  v.  Bcazcly,  3  Atk.  503. 

-  Gale  r.  Nixon,  G  Cow.  445.  *  Ide  v.  Stanton,  15  Verm.  685. 


(a)  The  statute  does  not  require  that  the  particular  land  contracted  to  be 
,sold  shall  be  described;  it  is  sufficient  that  the  contract  provides  for  its 
selection  out  of  the  lands  of  the  vendor.     Carpenter  v.  Lockhart,  1  Smith, 
326. 


CII.  VII.]  STATUTE   OF   FRAUDS.  117 

prepare  a  writing  for  both  parties  to  sign  ;  and  contain  the 
essential  terms  of  the  contract,  expressed  with  such  clearness 
and  certainty,  that  they  may  be  understood  from  the  writing 
itself,  or  some  other  paper,  to  which  it  refers,  without  resort- 
ing to  parol  proof.'  Thus,  it  is  sufficient,  if  the  name  is  so 
inserted  in  any  part  of  the  instrument,  whether  the  top,  mid- 
dle, or  bottom,  as  to  authenticate  it,  and  is  applicable  to 
the  whole  substance  of  the  writing,  and  put  there  by  the 
party  or  his  authority .^  [a)  As  where  an  agi-eement  begins, 
"I,  A.  B.,"  though  not  signed.^  So,  J.  R.  Bridges,  having 
five  freehold  houses,  but  no  other  property,  in  Cable  StTcet, 
Liverpool,  agreed  to  sell  them  to  J.  Bleakley  for  X248  ;  and 
thereupon  drew  up  the  following  memorandum  :  "July  26th, 
1839.  John  Bleakley  agrees  with  J.  R.  Bridges  to  take  the 
property  in  Cable  Street  for  the  net  sum  of  £248  10s." 
Held,  the  agreement  was  sufficiently  signed  by  the  vendor.'^ 
So,  if  a  person  who  is  a  party  to,  and  knows  the  contents 
of  an  agreement,  subscribes  it  as  a  witness  only,  this  has 
been  held  a  signing  within  the  statute.^ 

24.  B.  sold  W.  a  tract  of  land,  for  a  sum  of  money,  pay- 
able one  half  in  six  months  and  the  remainder  in  twelve, 
and  a  deed  was  prepared  and  executed  at  the  same  time  by 
B.,  but  remained  in  his  possession.  W.  paid  part  of  the 
purchase-money,  but  afterwards  failed;  and,  upon  B.'s  offer- 
ing him  a  deed,  conveying  the  land,  and  demanding  a  com- 

1  Worrall   i\   Munn,    1    Sckl.    229  ;  112;  Barstow  v.  Gray,  3  Grccnl.  409: 

Fowle  i\  Erecman,  9  Ves.  351:  Goom  McCiea   v.  Purmort,    16  Wend.   460  : 

V.  Afflalo,  6  B.  &  C.   117;  Ide  r.  Stan-  Clason  v.  Bailey,  14  Johns.  487. 

ton,  15  Verm.  685  :  Smith  v.  Arnold,  5  -  Ogilvie  v.   Foljambe,  3  Meri.   53  ; 

Mass.  414  :  Adams'  v.  M'Millan,  7  Port.  Anderson  v.  Harold.  10  Ohio,  399  ;  Hig- 

73  ;    Packhurst    v.   Van    Cortlandt,    1  don  v.  Thomas,  1  Harr.  &  G.  130. 

Johrij;..  Ch.    274  ;    Getchell  v.    Jewctt,  ^  Knight   v.   Crockford,   1   Esp.  Ca. 

4  Greenl.   350  ;    Sliirley   v.   Shirley,    7  189. 

Blackf.  452  ;  Thornton  v.  Kcnipster,  5  *  Bleakley  v.  Smith,  11  Sim.  150. 

Taun.  788;  Eussell  v.  Nixon,  3  Wend.  ^  Welford  v.  Beazely,  3  Atk.  503. 


(fl)  In  New  York,  jmntinr/  the  yendor's  name  at  the  foot  of  the  contract   # 
is  not  sufficient.     Vielie  r.  Osgood,  8  Barb.  130.     There  must  be  an  actual 
manual  subscription  at  tire  end  of  the  contract.     Ibid. 


118  LAW    OF    VENDORS   AND    PURCHASERS.  [cil.  VII. 

pliancc  with  tlio  contract  on  his  part,  W.  declined,  on  the 
ground  of  inability  to  pay  the  sum  due.  B.  then  declared 
the  contract  to  be  at  an  end,  and  went  on  to  improve  the 
lands  in  his  possession,  at  the  same  time  refusing  to  give 
up  that  portion  of  the  purchase-money  received.  Upon  an 
action  for  specific  performance,  held,  the  deed  took  the  case 
out  of  the  statute.^  So,  a  written  notice,  signed,  referring  to 
a  written  proposal,  not  signed,  and  made  several  years  before, 
maybe  so  connected  with  it,  as  to  render  the  two  documents 
a  binding  contract.^  So,  decrees  may  be  founded  upon 
letters,  not  intended  at  the  time  to  be  a  complete,  final 
agreement.-'  So,  a  deed  defectively  executed  is  evidence  of 
a  parol  agreement  to  convey  land."*  So,  where  parties  agree 
to  exchange  lands,  a  deed  executed  by  one  of  them,  though 
not  delivered,  is  a  sufficient  memorandum  to  bind  him,^  (a) 
So,  a  bond,  reciting  the  names  of  the  parties  to,  and  the  terms 
of,  a  contract  for  the  sale  of  land,  and  conditioned  to  secure 
a  performance  of  such  contract,  prepared  and  written  by 
the  vendee  and  obligee,  and  executed  by  an  agent  of  the 
vendor,  and  delivered  by  him  to  the  vendee ;  is  a  sufficient 
signing.^ 

25.  So,  where  a  contract  in  writing,  or  note,  exists,  which 
binds  one  party,  any  subsequent  note  in  writing,  signed  by 
the  other,  binds  him,  provided  it  either  contains  in  itself  the 
terms,  or  refers  to  any  writing  which  contains  them." 

26.  Thus,  the  purchaser  of  lands  at  auction  signed  a 
memorandum  of  the  contract,  indorsed  on  the  particulars 

'  Bowles  V.  Woodson,  6  Gratt.  78.  &  Parrill  r.  M'Kinley,  9  Gratt.   I. 

^  Lowry  v.  Dufferin,  Ir.  Eq.  287.  ^  Iligdon  v.  Thomas,  1  Harr.  &   G. 

<*  Fowle  V.  Freeman,  9  Ves.  3.51.  130. 

*  Somerville  v.  Trucman,  4  Harr.  &  ''  Dobell  v.  Hutchinson.  3  Ad.  ^  Ell. 

Mellen.  252.  355. 


(«)  Contract  for  the  sale  of  land.  The  deeds  were  drawn,  the  vendor 
took  tliem  home,  and  wrote  to  the  vendee  that  they  were  ready,  and  re- 
quested her  to  attend  and  settle  the  business,  but  he  died  before  the  parties 
met.  Held,  not  a  sufficient  agreement  in  writing.  Givens  v.  Calder,  2  De- 
saus.  1  71. 


CH.  VII.]  STATUTE    OF   FRAUDS.  119 

and  conditions  of  sale,  and  referring  to  them.  Afterwards 
he  wrote  to  the  vendor,  complaining  of  a  defect  in  the  title, 
referring  to  the  contract  expressly,  and  renouncing  it.  The 
vendor  wrote  and  signed  several  letters,  mentioning  the 
property  sold,  the  names  of  the  parties,  and  some  of  the 
conditions  of  sale,  insisting  on  one  of  them,  as  curing  the 
defect,  and  demanding  the  execution  of  the  contract.  Held, 
these  letters,  as  connected  with  the  particulars  and  condi- 
tions, constituted  a  memorandum  in  writing,  binding  upon 
the  vendor  under  the  statute,  (s.  4,)  although  neither  the 
original  conditions  and  particulars,  nor  the  memorandum 
signed  by  the  purchaser,  mentioned  or  were  signed  by  the 
vendor.^  So,  where  a  letter  signed  by  the  vendor  is  com- 
bined with  his  proposal,  by  a  note  in  the  third  person,  speci- 
fying the  price.2 

27.  The  defendant  purchased  leasehold  premises  at  auc- 
tion, and  signed  a  memorandum  of  the  purchase,  on  the 
back  of  a  paper,  containing  the  particulars  of  the  premises, 
the  name  of  the  owner,  and  the  conditions  of  sale.  Held, 
that  the  defendant  was  bound,  though  no  contract  was 
signed  by  the  vendor.^  So,  if  a  party  has  entered  into  a 
parol  agreement  for  a  lease,  and  a  draft  of  it  is  prepared, 
though  the  agreement  is  void  under  the  statute  ;  yet  an 
indorsement  by  him,  referring  to  the  case  on  the  draft  ad- 
mitting the  agreement,  is  sufficient  to  bind  him."^  So,  where 
the  reversioner  in  fee  of  a  house,  expectant  upon  a  term,  a 
portion  of  which  has  been  underlet,  agrees  by  one  letter  to 
arant  the  sub-lessee  an  extension  of  the  lease  at  a  certain 
yearly  rent,  and  in  another  letter  fixes  the  time  when  the 
term  is  to  expire  ;  this  is  a  valid  agreement,  and  the  sub- 
lessee has  a  right  to  a  lease,  which  shall  commence  from  the 
expiration  of  the  existing  term.^ 

1  DobcU.f.  Hutchinson,  3  Ad.  &  Ell.  ^  Laythourp  v.  Eryant,  2  Bing.  N.  C, 
355.  735. 

^  Western  f.  Russell,  3  Vcs.  C!<  Bca.  *  Shippeyt^.Dcrnson,  5Esp.  Ca.  190. 
187.  ^  Verlander  r.  Codd,  Turn.  &  Russ. 

352. 


120  LAW   OF   VENDORS   AND   PURCHASERS.  [CH.  VII. 

28.  But  the  note  or  memorandum  must  state  expressly,  or 
by  reference,  the  subject  of  sale,  the  terms  and  the  parties, 
with  such  certainty  as  to  furnish  evidence  of  a  complete 
agreement.  Thus,  where  the  subject  of  sale  was  described 
as  "  B.'s  right  in  C.'s  estate,"  held,  sufficiently  certain.  But, 
where  the  memorandum  was  a  book,  on  the  cover  of  which 
was  written,  "  A.'s  memorandum  of  B.'s  property  received 
by  assignment,"  and,  on  a  leaf  of  the  book,  under  the  cap- 
tion, "  Sales  at  auction,  6th  March,  1826,"  was  this  entry : 
"  B.'s  right  in  C.'s  estate,  sold  to  D.,  $60 ; "  in  an  action 
brought  by  A.,  the  auctioneer,  against  D.,  for  the  purchase- 
money,  it  was  held,  that  the  memorandum  was  fatally  de- 
fective, because  it  did  not  show,  with  the  requisite  certainty, 
that  A.  was  the  vendor.'  So,  an  imperfect  memorandum 
of  a  sale  by  an  auctioneer,  and  a  letter  addressed  by  the 
vendee  to  the  vendor,  cannot  be  so  united  as  to  take  such 
sale  out  of  the  statute,  there  being  no  direct  reference  in  the 
one  to  the  other,  so  as,  in  effect,  to  render  them  one,  without 
the  aid  of  parol  proof.-  So,  an  agreement  cannot  be  partly 
in  writing  and  partly  in  parol,  though  it  may  be  shown  by 
parol  evidence  that  separate  papers  both  related  to,  and 
formed  parts  of,  one  contract."  So,  a  paper  signed  by  a  party, 
and  proposing  to  convey  all  the  property,  cannot  be  con- 
nected by  parol  with  another  paper  not  signed,  for  the  pur- 
pose of  designating  the  property  meant  to  be  conveyed.* 

29.  The  prevailing  course  of  decisions  is  as  above  stated, 
in  regard  to  a  liberal  construction  of  the  Statute  of  Frauds. 
There  are  cases,  however,  which  give  it  a  more  strict  inter- 
pretation, and  require  a  more  exact  conformity  to  its  pro- 
visions. Thus,  in  reference  to  what  constitutes  a  signing. 
But  where  one  altered  a  draft  with  his  own  hand,  for  the 
purchasing  an  estate  ;  held,  not  a  sufficient  signing,  though 
the  seller  afterwards  executed  the  conveyance,  and  caused  it 


'  Nichols  V.  Johnson,  10  Conn.  192:         ^  Moale  r.  Buchanan,  11   Gill  &  J. 
Smith  V.  Arnold.  5  Mas.  414.  '     314. 

-  Adams  v.  M'Millan,  7  Port.  73.  *  Ibid. 


CII.  VII.]  STATUTE    OF   FRAUDS.  121 

to  be  registered.^  So  the  writing  of  a  party's  name  by  him- 
self, in  the  body  of  a  memorandum  of  agreement  for  a  lease, 
is  not  a  signature? 

30.  So  it  is  held  that  an  entry^  to  be  valid,  must  contain  a 
memorandum  of  the  contract,  and  state  distinctly  the  article 
sold,  the  price,  and  the  purchaser's  name.  Thus,  the  fol- 
lowing memorandum,  found  in  the  books  of  one  deceased : 
"  1841,  W.  P.  to  H.  C.  O.  Dr.  To  four  loads  of  rock,  one 
lot,  at  one  year's  credit,  $125;"  is  too  vague  and  uncertain, 
to  sustain  a  bill  for  specific  performance  of  a  contract  for 
the  purchase  of  land,  against  the  administrator.'^  So  an 
entry  in  these  words,  "  The  tract  of  land  to  Wm.  Meadows, 
at  $5.48,"  is  insufficient.*  So,  where  Oliver  and  Pipkin 
bought  of  James  some  groceries,  an  ice-house  and  lot ;  and  a 
memorandum  of  the  sale  was  headed,  "  Invoice  of  articles 
purchased  by  Pipkin  and  Oliver  of  James,  29th  August, 
1836  ; "  and  one  of  the  items  of  sale  was  stated  thus  :  "  One 
ice-house  and  lot,  $140;"  held,  that  the  contract  as  to  the 
ice-house  and  lot  was  void  for  uncertainty.^  So,  the  bare 
entry  of  a  steward,  in  his  lord's  contract  book  with  his 
tenants,  is  not  an  evidence  of  itself,  that  there  is  an  agree- 
ment for  a  lease  between  the  lord  and  a  tenant.*^ 

31.  Lease  of  lands  by  auction.  A  writing,  delivered"  by  tlje 
auctioneer  to  the  highest  bidder,  and  containing  a  descrip- 
tion of  the  lands,  the  term  for  which  they  were  let,  and  the 
rent,  but  not  signed  by  the  auctioneer  or  any  of  the  parties, 
was  held  not  to  be  such  a  minute  of  the  agreement  as 
was  required  to  be  stamped,  pursuant  to  Stat.  48  Geo. 
III.  c.  149,  nor  such  a  writing  as  would  exclude  parol 
evidence.^ 

32.  A.,  by  public  advertisement,  offered  lands  to  be  let  for 
three  lives,  or  thirty-one  years.     Proposals  having  been  made 

'  Hawkins  v.  Holmes,  1  P.  Wms.  *  Meadows  v.  Meadows,  3  M'C.  458. 
770.  ^  Popkin  v.  James,  1  Humpli.  325. 

2  Stokes  V.  Moore,  1  Cox,  219.  <=  Charlewood  v.  The  Duke  of  Bed- 

3  Plummer  v.  Owens,  1  Busb.  Equ.  ford,  1  Atk.  497. 

254.  ''  Ramsbottom  v.  Tunbridge,  2  Mau. 

&  Selw.  434. 

11 


122  LAW  OF  VENDORS  AND  PURCHASERS.      [CH.  VII. 

by  B.  and  accepted,  an  agreement  was  executed  between  B. 
and  the  agent  of  A.,  duly  authorized,  in  which  the  term  was 
not  mentioned.  Held,  A.  was  not  bound.  Also,  there  be- 
ing no  reference  in  the  agreement  to  the  advertisement,  that 
parol  evidence  could  not  be  received,  to  connect  the  one  with 
the  other,  so  as  to  ascertain  the  term.^ 

33.  It  has  been  questioned  whether  the  receipt,  not  contain- 
ing the  terms  of  the  agreement,  nor  referring  to  any  other 
paper  containing  it,  can  have  effect  as  an  agreement,  within 
the  Statute  of  Frauds.^ 

34.  A  particular  in  writing  for  the  purchase  of  an  estate 
is  not  sutHcient  within  the  statute,  unless  the  party  pur- 
chased by  it,  or  it  was  shown  him  at  the  time  of  purchase. 
Hence,  if  it  contain  more  than  the  words  of  the  conveyance 
will  in  strictness  carry,  the  purchaser  cannot  compel  a 
specific  execution  of  the  residue,  on  the  particular.^ 

35.  Bill  for  specific  performance  of  an  agreement  for  the 
sale  of  lands  and  chattels.  Plea,  the  Statute  of  Frauds. 
The  defendant,  during  the  negotiation,  delivered  a  particular 
of  the  whole,  signed  by  him.  The  agreement  was  after- 
wards made  at  a  less  price.  Both  parties  gave  instructions 
to  an  attorney  to  prepare  the  conveyance ;  and  the  defend- 
ant delivered  to  him  the  particular,  as  instructions  for  the 
deed,  which  was  prepared.  Held,  not  sufficient  under  the 
statute.^ 

36.  A  letter  to  a  solicitor,  with  directions  for  preparing 
the  conveyance  of  land  purchased,  described  generally  as 
the  land  bought  of,  (a  person  named),  but  not  specifying  the 
terms,  is  not  sufficient  evidence  of  a  contract  within  the 
statute,  and  the  estate  will  not  pass  by  a  will  made  pre- 
vious to  the  conveyance.^ 

37.  Where  a  letter  contains  the  entire  terms  of  an  agree- 
ment, it  is  not  necessary  for  the  plaintiff  to  prove  that  he 
accepted  the  terms.     If  it  require  the  plaintiff  to  supply  a 

1  Clinan  v.  Cooke.  1   Sch.  &  Let  22.        *  Cooke  v.  Tombs,  2  Anst.  430. 
'-  Coles  V.  Trecothick,  9  Ves.  234.  ^  Rose  y.  Cunynghame,  11  Ves.  50. 

■^  Cass  r.  Waterhouse,  Prec.  Cha.  29. 


CH.  VII.]  STATUTE   OF   FRAUDS.  123 

term,  there  must  be  a  special  acceptance  in  writing,  supply- 
ing that  term,  in  order  to  take  the  case  out  of  the  statute.^ 

38.  With  regard  to  the  mode  of  relying  upon  the  Statute 
of  Frauds,  as  a  defence  to  a  suit  upon  a  parol  contract  relat- 
ing to  lands  ;  or  the  rules  of  pleading  connected  with  such 
defence ;  it  is  held,  in  general,  that  a  parol  contract  for  the 
sale  of  lands  is  only  voidable?  Hence,  although  in  a  suit  for 
specific  performance  of  such  agreement,  if  the  defendant,  in 
his  answer,  admit  the  agreement,  he  may  still  set  up  the 
statute  as  a  defence  ;  '^  yet,  if  the  defendant  in  his  answer 
admits  the  contract,  without  insisting  on  the  statute,  the 
court  will  decree  a  specific  performance.* 

39.  The  statute  need  not  be  pleaded ;  more  especially 
where  the  answer  denies  the  agreement.^  So,  if  a  defendant 
denies  any  agreement,  the  complainant  must  prove  a  valid  , 
one,  except  in  case  of  part  performance.^  So,  if  a  bill 
be  brought  for  specific  performance  of  a  parol  contract  for 
the  conveyance  of  land,  although  the  defendant  does  not 
rely  upon  the  plea  of  the  statute,  yet,  if  he  denies  the  con- 
tract as  stated  in  the  bill,  and  insists  that  the  real  contract 
was  a  different  one,  the  court  will  not  receive  parol  evidence 
in  support  of  the  plaintiff"'s  claim.'^ 

40.  But  the  bill  having  charged,  that  the  defendant  had 
written  letters  to  the  attorney  who  was  to  prepare  the  convey- 
ance, in  which  the  agreement  was  admitted,  he  must  answer 
to  that  fact.^ 

41.  Where  a  bill  seeks  specific  performance  of  a  con- 
tract, which  appears  from  the  bill  itself  to  be  within  the 
statute,  this  is  ground  of  demurrer.^  So,  when  fraud  is 
charged  in  the  bill,  it  need  not  be  answered,  if  the  bill,  ad- 
mitting the  fraud,  presents  no  ground  for  relief.     Hence,  a 

'  Boys  r.  Ayerst,  6  Madcl.  ai6.  Rowton  y.  Rowton,   1   Hen.  &  M.   92; 

2  Gillespie  v.  Battle,  15  Ala.  276.  Givens  v.  Calder,  2  Desaus.  171. 

3  Thompson  u.  Tod,  1  Pet.  C.C.. 388.  ^  Jervis   v.  Smith,  1   Hoffm.  Ch.  R. 
*  Holliiigshead  v.  MeKenzie,  8  Geo.  470;  Reynolds  c.  Dunkirk,  &c.,  17  Barb. 

4.57;    Newton   v.  Swazey,   8  N.   H.   9;  613;  Hall  r.  Hall,  1  Gill,  383. 

Jervis  v.  Smith,  1  Hotfni.  Ch.  470.  "^  Allen  v.  Chambers,  4  Ired.  12.5. 

°  PoafT  V.  Sandifer,  5  Rich.  Eq.  170.  **  Cooke  v.  Tombs,  2  Anstr.  420. 

See  Tufts  v.  Tufts,  3  W.  &   M.  456  ;  ^  Chambers  v.  Lecompte,  9  Mis.  566. 


124  LAW    OF   VENDORS   AND    PURCHASERS.  [CH.  VII. 

bill  to  enforce  a  parol  sale  of  land,  charging  the  defendant 
with  fraudulently  refusing  to  reduce  the  agreement  to  writ- 
ing, though  it  was  part  of  the  contract  that  it  should  be  so 
reduced,  may  be  demurred  to,  without  an  answer  to  the 
charge  of  fraud.' 

42.  Bill  for  specific  performance  of  a  parol  agreement 
respecting  lands.  The  defendant  pleaded  the  Statute  of 
Frauds,  and  also  answered.  In  his  answer  he  admitted  the 
parol  agreement,  as  stated  in  the  bill ;  and  that  he  had  taken 
possession  of  and  held  the  land  under  the  agreement.  Held, 
the  answer  took  the  case  out  of  the  statute.^ 

43.  Bill  for  specific  performance  of  a  verbal  agreement 
relating  to  the  purchase  of  land.  The  defendant  relied  on 
the  Statute  of  Frauds,  and  also  denied  any  such  agreement. 
Upon  this  denial  he  was  indicted  for  perjury.  Held,  the 
denial  of  an  agreement  not  binding  on  the  parties  was  im- 
material and  irrelevant,  and  the  defendant  was  entitled  to 
his  acquittal.^ 

44.  A  parol  contract  for  lands,  alleged  to  have  been  made 
by  the  ancestor,  will  not  be  specifically  enforced  against  in- 
fant heirs,  although  their  guardians  do  not  insist  upon  the 
statute.* 

'  Box  V.  Stanford,  13  Smedes  &  ^  Rex  v.  Dunston,  Rv.  &  Mood.  109. 
Marsh.  93.  *  Grant  v.  Craigrailes,  I  Bibb.  203. 

^  Smith  y.Brailsford,  1  Desaus.  350.  . 


CII.  VIII.] 


PAROL   LICENSE. 


125 


CHAPTER  VIII. 


PAROL    LICENSE. 


1.  Part-performanoe  and  license. 

2.  Nature  of  a  license. 

8.  linplinl  license. 

9.  Distinction  between  a  license,  and 
a  lease,  or  an  easement. 


19.  A  license  creates  &  personal  right; 
by  wiiom,  and  at  what  time,  it  is  to  be 
executed  ;  who  are  bound  by  it. 

27.  Whether  and  how  far  a  license  is 
revocaUe. 


1.  In  the  next  chapter,  we  shall  have  occasion  to  consider 
the  effect,  upon  a  verbal  contract  for  the  sale  and  purchase 
of  lands,  of  a  part-performance  of  such  contract,  as  operating 
to  take  it  out  of  the  Statute  of  Frauds.  Somewhat  anal- 
ogous to  this  part  of  the  general  subject,  is  a  verbal  license 
to  enter  upon  land,  for  particular  specified  purposes,  not 
constituting  or  accompanied  by  a  transfer  of  title  to  the 
land  itself.  Inasmuch  as  a  license  derives  much  of  its  legal 
effect  and  validity  from  the  execution  of  it,  the  two  topics 
referred  to  may  naturally  be  considered  in  immediate  con- 
nection with  each  other. 

2.  A  license,  as  has  been  already  remarked,  does  not  pass 
an  estate,  but  merely  confers  a  certain  right  or  privilege,  to 
be  used  upon  the  land  of  another.  It  is  a  mere  authority  to 
enter  upon  the  land  of  another,  and  do  an  act,  or  series  of 
acts,  without  having  any  interest  in  the  land ;  founded  in 
personal  confidence,  not  assignable,  and  valid,  though  not 
in  writing.^  Thus,  the  grant  of  a  license  to  flow  passes  no 
property,  but  is  a  mere  remitter  of  damages.^  So  a  license 
will  not  sustain  an   action  of  trespass  qu.  cl?     So,  a  plea 

1  Mumford   v.    Whitney,    15    Wend.  '^  Clinton  v.  M'Kenzie,  5  Strohh.  36. 

380;  Folsom   v.   Moore,  1  Appl.  252;  See    Smith   v.    Simons,    I    Root,   318; 

Taylor  v.  Waters,  7  Taunt.  374;  Lig-  Woodward  v.  Secley,  11  Illin.  157. 

gins  V.  Inge,   5  Moo.  &  P.  712  ;  Hazel-  ^  Houghtaiiing    v.    Houghtailing.    5 

ton  V.  Putnam,  3  Chand   117.  Barb.  379  ;  Den  v.  Baldwin,  1  Zabr.  390. 
11* 


126  LAW    OF   VENDORS    AND    PUllCIIASERS.  [CII.  VIII. 

of  license  does  not  raise  the  question  of  title. ^  So  a  license 
not  only  does  not  create  any  title  to  the  land,  but  also  dis- 
proves any  claim  arising  from  adverse  possession.''^ 

3.  Thus,  a  parol  agreement  for  liberty  to  stack  coals  upon 
land,  for  seven  years,  has  been  held  valid.^  So,  a  parol 
license  to  build  and  maintain  a  bridge  on  another's  land  is 
valid.^  So  parol  authority  may  be  given  to  a  grantor  to 
enter  upon  the  land  and  remove  property,  being  a  mere 
license.^  So,  a  parol  license  is  valid,  to  enter  on  land,  and 
lay  down  aqueduct  logs,  for  the  purpose  of  conveying  water 
from  a  spring  to  adjoining  land,  with  liberty  to  enter  from 
time  to  time  for  examination  and  repairs.*^ 

4.  Action  for  building  and  continuing  a  railroad  on  a 
street  in  front  of  the  plaintiff's  house,  so  as  to  obstruct  his 
right  of  ingress  and  egress.  Held,  the  company  might  set 
up  a  parol  license  from  the  plaintiff  to  build  the  road,  as 
a  bar  to  all  damages  sustained  while  the  license  remained 
unrevoked.'^ 

5.  The  owner  of  wild  land  agreed  with  another  person 
to  go  and  clear  a  part  of  it,  fence,  and  help  the  latter  to 
build  a  house,  reserving  to  the  former  the  use  of  the  timber, 
except  what  was  needed  for  "  house,  rails,  and  firewood." 
Held,  a  mere  license  to  occupy  the  land,  giving  no  right  to 
dispose  of  any  timber  cut  in  clearing  it.^ 

6.  License  from  the  lord  of  a  manor  to  erect  a  cottage, 
rendering  an  annuial  rent  of  10s.  6d.  as  a  quit-rent ;  also  to 
enclose  a  piece  of  ground  for  a  garden  to  the  cottage ;  both 
being  parts  of  the  waste.  The  licensee  built  a  cottage,  and 
resided  in  it  a  year  and  a  half.  Held,  not  to  confer  a  settle- 
ment, not  being  a  grant  of  any  interest  in  land.^ 

7.  A  son,  having  agreed  to  purchase  a  piece  of  land  for 
65/.,  applied  to  his  father,  who  consented  to  advance   201. 

1  Wheeler  u.  Rowell,  7  N.  H.  515.  ^  Sampson   v.   Burnside,    13    N.   H. 

2  Lrtice  V.  Cooley,  24  Wend.  451.  264. 

3  Wood  V.  Lake,  Say.  3.  "  Miller  v.  Auburn,  &c.  6  Hill,  6. 

*  Ameriscoggin,  &c.  v.  Bragg,  UN.  ^  Caller  m.  Hilty,  2  Harr.  (Penn.)  286. 
H.  102.  3  Rex  V.  Inhabitants  of  Horndon,  4 

5  Parsons  v.  Camp,  11  Conn.  25.  Mau.  &  Selw.  562. 


CH.  VIII.]  PAROL   LICENSE.  127 

left  to  his  wife,  on  condition  that  a  house  should  be  built  by 
the  son  on  the  land,  which  the  father  and  mother  were  to 
have  for  their  lives,  and  the  life  of  the  survivor,  and  which 
was  afterwards  to  go  to  the  son,  but  the  father  and  mother 
were  not  to  sell  or  dispose  of  it,  nor  to  take  any  other 
family  into  the  house.  This  agreement  was  only  by  parol. 
Afterwards  the  father  advanced  the  20/.,  the  son  completed 
the  purchase,  the  land  was  conveyed  to  him  in  fee,  and  he 
built  a  house,  of  which  the  father  and  mother  took  posses- 
sion, with  his  consent,  and  lived  in  it  for  three  years,  with- 
out paying  any  rent,  when  the  father  died,  and  the  mother 
continued  in  possession.  Held,  the  father  did  not  gain  a 
settlement  by  the  residence  on  the  land,  nor  was  the  mother 
entitled  to  reside  on  it  irremovably.i 

8.  A  license,  or  a  right  equivalent  to  that  created  by  a 
license,  may,  under  some  circumstances,  be  implied.  Thus, 
it  is  held  in  Maine,  that  the  right  to  Jiow,  in  order  to  raise 
water  sufficient  to  carry  a  mill,  subject  to  the  claim  for  dam- 
ages, is  given,  by  necessary  implication,  in  the  statute  regu- 
lating mills,  and  therefore  needs  not  to  be  proved  by  writing, 
under  the  Statute  of  Frauds.-  [a)  So,  there  is  an  implied 
license  to  enter  a  shop  for  the  purpose  of  making  a  purchase, 
or  the  house  of  a  friend,  to  pay  a  visit.^  So,  the  construc- 
tion of  a  wharf,  or  dock,  on  the  margin  of  a  navigable 
stream,  is  an  implied  license  to  all  persons  engaged  in  the 
navigation  of  its  waters,  to  use  the  wharf,  when  otherwise 
unoccupied,  for  the  purpose  of  mooring  or  making  fast  their 
vessels  ;  and,  when  once  acted  on,  this  license  cannot  be  re- 
called, without  giving  the  owner  of  the  vessel  sufficient  time 
to  provide  for  her  safety  in  some  other  manner.  Held,  there- 
fore, that  one  by  whom  a  vessel  was  cut  loose   from   her 

'  Rex  V.  Inhabitants  of  Standon,  2         -  Clement  v.  Diirgrin,  5  Greenl.  9. 
Mau.  &  Selw.  461.  ^  Adums  v.  Freeman,  12  John.  486. 


(a)  So,  the  damages  occasioned  by  such  flowing  may  be  wafved  or  re- 
linquished by  parol. 


128  LAW    OF   VENDORS   AND   PURCHASERS.  [ciI.  VIII. 

fastenings,  and  suffered  to  drift  down  the  stream,  was 
answerable  for  the  whole  amount  of  injury  thus  occasioned  ; 
and  could  not  justify  by  sliowiiig  that  the  title  to  the  wharf 
was  vested  in  himself,  and  that  the  vessel  had  been  moored 
there  without  his  knowledge  or  consent.^  So,  building  a 
plank  wall  near  tiie  boundary  line  of  land,  which  the  i)lain- 
tiifwas  entitled  to  have  left  open  with  a  view  to  the  enjoy- 
ment of  light  and  air ;  was  held  a  waiver  of  that  right,  and 
debarred  him  from  objecting  to  the  building  erected  by  the 
defendant,  although  so  placed  as  to  obstruct  the  view  from  a 
window  subsequently  opened  in  the  wall.^  But  where,  by 
an  indenture  between  the  town  of  Boston  and  a  mill-dam 
corporation,  the  latter  granted  to  the  former  a  certain  pro- 
portion of  a  tract  of  land  covered  with  water,  "  excepting 
the  mill-creek,  and  such  other  canals  as  may  be  agreed  to  be 
kept  open  for  the  passage  of  boats ; ''  and  by  a  subsequent 
indenture  between  the  same  parties,  it  was  agreed  that  the 
town  might  put  a  covering  over  part  of  the  creek  or  canal, 
"  provided  only,  that  no  interruption  or  impediment  shall  be 
made  or  permitted  below  said  covering  to  boats  on  passing 
through  or  into  said  canal ; "  held,  these  provisions  did  not 
constitute  a  license  to  the  abutters  to  navigate  the  creek.^ 
So,  also,  the  creek  being  kept  open  for  boats,  held,  although 
there  was  an  implied  public  license  to  navigate  it,  this  was 
not  such  a  perpetual  license  as  could  be  pleaded  as  a  grant, 
or  a  dedication  to  the  public ;  and  that  no  individual  could 
acquire  a  prescriptive  right,  by  the  use  of  it  while  thus  open.^ 
9.  It  is  obvious,  from  the  general  nature  of  the  title  above 
referred  to,  as  well  as  from  the  cases  cited  to  illustrate  it, 
that,  although  purporting  to  involve  no  interest  in  the  land, 
and  therefore  not  falling  within  the  provisions  of  the  Statute 
of  Frauds  ;  it  is  still  a  species  of  oicnership,  and,  if  extended 
to  the  length  which  the  principle  of  it  would  seem  legiti- 
mately to  allow,  might  well  go  far  to  defeat  the  purposes 

1  Heeny  v.  Heeny,  2  Dcnio,  625.  ^  Baker  v.  Boston,  12  Pick.  184. 

■■^  Moore  v.  Rawson,  3  B   &  C.  332.        *  Ibid. 
See  Liggins  v.  Inge,  7  Bingh.  682. 


CH.  VIII.]  PAROL   LICENSE.  129 

of  that  statute.  Hence  the  following  distinction  has  been 
adopted,  and  seems  to  be  as  well  established  as  the  general 
rule  itself. 

10.  A  license  is  a  mere  authority  to  do  a  particular  act,  or 
series  of  acts,  upon  another's  land,  as  e.  g.  to  hunt,  or  cut  a 
certain  number  of  trees.  Such  licenses  merely  excuse  acts, 
which  would  otherwise  be  trespasses.  But  a  license,  which 
grants  an  estate,  however  short,  is  a  lease,  and  requires  a 
deed.  So,  a  permanent  right  to  hold  another's  land  for  a 
particular  purpose,  and  enter  at  all  times  without  his  con- 
sent, is  an  easement^  and  requires  an  agreement  in  writing.^ 

11.  So  it  is  held,  that  although  an  easement,  arising  either 
from  graiit  or  prescription,  may  be  extinguished,  renounced, 
or  modified  by  a  parol  license  from  the  owner  of  the  dominant 
tenement,  executed  by  the  owner  of  the  servient  tenement; 
yet,  as  an  easement  cannot  be  created  but  by  deed  or  pre- 
scription, a  parol  license,  which  would  create  an  easement, 
if  given  by  deed,  may  be  revoked,  even  after  execution.^  [a) 

12.  The  owner  of  a  mill  privilege,  under  whom  the  plain- 
tiffs claimed,  gave  the  owner  of  lands  flowed  thereby,  under 
whom  the  defendants  claimed,  an  oral  license  to  erect  a  dam 
on  his  land,  and  also  to  dig  a  ditch  across  the  land  of  the 
licensor  to  drain  the  water  from  part  of  the  licensee's  land ; 
which  was  accordingly  done.  Held,  the  license  to  dig  the 
ditch  might  be  revoked,  even  after  twenty  years,  but  not  the 
license  to  build  the  dam ;  and,  the  licensor  having  assumed 
to  revoke  the  whole  license,  and,  after  notice,  made  an  in- 
cision in  the  dam  ;  the  licensee  was  justified  in  making  a 

'  Cooky.  Stearns.  11  Mass.  537;  Fol-  Spear,  17  Maine,  12-3;  Stevens  w.  Ste- 

som  V.  Moore,  1   Appl.  2.52;  Prinee  v.  vens,  11  Met.  251  :  3  Kent,  452;  Claflia 

Case,  10  Conn.  375;  Mumford  r.  Whit-  v.  Carpenter,  4  Met.  583. 
ney,   15  Wend.  380;  Seidensparger  v.        -  Morse  v.  Copeland,  2  Gray,  302. 


(rt)  "  Generally,  if  not  always,  a  license  which,  when  executed,  extin- 
guishes or  modifies  an  easement,  is,  from  the  nature  of  the  case,  a  license  to 
do  acts  on  the  servient  tenement — the  tenement  of  the  licensee."  Per 
Metcalf,  J.    Morse  v.  Copeland,  2  Gray,  305. 


130  LAW    OF   VENDORS    AND    PURCHASERS.  [cil.  VIII. 

ditch  on  his  own  land,  to  draw  off  the  water  thus  thrown 
upon  it,  though  he  thereby  diverted  the  water  from  the 
licensor's  mill-pond.' 

13.  So,  an  agreement,  that  a  party  may  abut  and  erect  a 
dam  upon  the  lands  of  another,  and  maintain  it  so  long  as 
there  shall  be  employment  for  the  water-power,  is  void,  for 
the  power,  being  not  a  mere  license,  but  a  transfer  of  an 
interest  in  lands,  in  order  to  be  valid,  must  be  in  writing.^ 

14.  The  attorney  of  a  lessor  wrote  to  the  lessee :  "  Mr. 
(the  lessor)  has  no  objection  to  your  leaving  the  fixtures  on 
the  premises,  and  making  the  best  terms  with  the  incoming 
tenant."  Held,  if  such  letter  gave  any  license,  it  was  one 
coupled  with  an  interest  in  land,  and  required  a  scaled 
instrument ;  and  did  not  therefore  give  the  lessee  a  right  of 
action  against  the  incoming  tenant,  for  refusing  either  to 
purchase  the  fixtures  or  allow  the  lessee  to  enter  and  remove 
them.^ 

15.  The  defendant  gave  a  parol  license  to  the  plaintiff  to 
construct  a  drain  through  the  defendant's  yard,  and  use  it 
as  a  means  of  escape  for  foul  and  waste  water  from  the 
defendant's  premises.  After  the  license  had  been  acted  upon 
and  executed,  and  the  drain  constructed,  he  revoked  the 
license  and  stopped  up  the  drain.  Held,  he  was  not  liable 
to  an  action  for  so  doing,  the  right  claimed  by  the  plaintiff 
being  an  easement,  which  lay  in  grant,  and  could  not  be 
created  by  parol.* 

16.  A  sealed  instrument  of  the  following  tenor :  "  I  hereby 
authorize  R.  to  open  and  continue  open,  a  road  through  my 
field,  beginning  at,  &c.,  as  also  to  build,  keep  in  repair,  and 
use  a  bridge  over  the  branch  in  the  field  on  which  the  said 
road  will  pass,  said  road  and  bridge  being  intended  as  well 
for  the  public  use,  as  the  use  of  R. ;  and  to  continue  until  R* 
and  myself  shall  agree  it  shall  be  shut  up  or  altered ;"  is  a 
grant  of  an  incorporeal  hereditament,  a  right  of  way  de  novo, 

'  Morse  v.  Copeland,  2  Gray,  302.  ^  Ruffey  v.  Henderson,  8  Eng.  Law 

2  Mumford   v.    VVhiinev,   15    Wend.     &  Eq.  305. 
380,  '  *  Hewliiis  r.  Shippam,  5  B.  &C.  221. 


CH.  VIII.]  PAROL   LICENSE.  131 

which  will  endure  until  both  parties  agree  upon  its  discon- 
tinuance, and  must  be  legally  acknowledged  and  recorded.' 

17.  The  same  distinction  has  been  applied  to  public  or 
legislative  grants.  Thus,  the  proprietor  of  a  wharf  in  a 
harbor  was  authorized  by  statute  to  extend  it  into  the  chan- 
nel to  the  line  of  the  harbor.  Before  any  such  extension,  a 
company  was  incorporated,  with  authority  to  locate  and 
construct  a  railroad  across  and  over  the  flats  between  the 
wharf  and  the  line  of  the  harbor.  Held,  the  former  act  was 
a  grant,  not  a  mere  license,  revocable,  and  revoked  by  the 
latter.^  So,  a  legislative  repealable  grant  to  a  corporation, 
of  the  right  to  lay  gas-pipes  in  the  highways,  is  not  a  mere 
revocable  license,  but  an  easement.^ 

18.  A  license  is  also  to  be  distinguished  from  a  lease,  as 
well  as  an  easement,  which  latter  is  the  chief  point  of  dis- 
tinction in  the  cases  already  cited.  Thus,  A.,  under  a  license 
from  B.,  the  owner  of  land  through  which  flowed  a  water"- 
course,  erected  a  mill  thereon,  and  ever  afterward  held  and 
occupied  such  mill  as  owner ;  but  it  did  not  appear  that 
there  was  any  consideration  for  the  license,  or  that  it  was  to 
continue  for  any  certain  time,  or  that  there  was  any  agree- 
ment as  to  the  nature  of  the  occupation,  or  any  mutual 
stipulations.  A.  brings  an  action  against  C,  the  owner  of  a 
mill  below,  for  setting  back  the  water  upon  his  mill,  by 
means  of  a  dam  erected  by  C.  Held,  the  license  did  not 
constitute  a  lease,  nor  create  any  privity  of  contract  between 
A.  and  B.*  So,  an  unsealed  lease  provided  as  follows  :  "  All 
the  hedges,  trees,  thorn-bushes,  fences,  with  lop  and  top,  are 
reserved  to  the  landlord."  The  landlord  having  entered  the 
close,  and  drawn  the  trees,  when  cut,  over  it,  the  tenant 
brings  an  action  against  him.  Held,  the  above  agreement 
might  be  shown  under  a  plea  of  leave  and  license.^     So,  an 


1  Hays  V.  Richardson,    1    Gill  &  J.         ^  Providence,  &c.  v.  Thurber,  2  R.  I. 
366.  15. 

"■'  Fitchburg,  &c.    v.    Bos^n,    &c.    3         *  Branch  v.  Doane,  17  Conn.  402. 
Cush.  58.  °  Hewitt   v.  Isham,  7    Eug.  Law  & 

Eq.  595. 


132  LAW   OF   VENDORS    AND   PURCHASEIIS.  [cu.  VIII. 

executory  contract  of  purchase,  with  leave  to  the  vendee  to 
enter  and  occupy  till  default  in  payment,  without  any  fixed 
period  or  compensation,  is  a  license  ;  not  a  lease,  easement, 
or  permanent  interest  in  land.  Nor  does  it  create  the  rela- 
tion of  landlord  and  tenant.  Nor  is  the  purchaser  a  wrong- 
doer till  default  or  demand  of  possession.^  So,  a  deed, 
invalid  as  a  conveyance  for  want  of  a  witness,  may  be  good 
as  a  license.2 

19.  It  has  already  been  stated,  that  a  license  is  a  personal 
authority.  Hence,  the  privilege  which  it  creates  is  not  trans- 
missible, by  the  act  of  the  party  or  of  law,  by  assignment, 
descent,  or  devise,  like  a  legal  estate,  but  is  restricted  to  the 
original  party  himself,  (a)  Thus,  an  agreement  was  made 
for  sale  of  land,  the  purchaser  not  to  cut  or  allow  to  be  cut 
any  timber,  without  written  consent  of  the  vendor.  The 
defendant,  claiming  under  the  vendee,  cut  timber,  and  the 
vendor  brings  trover  against  him.  Held,  the  defendant  could 
not  set  up  in  defence  a  parol  license  to  cut,  from  the  plaintiff 
to  the  purchaser.^ 

20.  License  (under  seal)  to  build  a  mill  and  dam,  at  any 
point  in  the  course  of  a  stream,  which  the  grantee  should 
think  proper.  Held,  this  license  could  be  executed  only  by 
the  party  to  whom  it  was  given  ;  and,  if  not  executed  in  his 
lifetime,  would  confer  no  authority  or  interest  upon  his  heirs 
or  those  claiming  under  him.* 

21.  Trespass  against  a  commoner,  for  pulling  down  a 
house  built  on  the  common,  to  which  he  pleaded  his  right  of 
common  as  a  justification.     Replication,  a  license  to  build 

1  Dolittle  V.  Eddy,  7  Barb.  74.  *  Vandenbur^h   v.  Van  Bergen,    13 

2  Sullivanti'.Frahklin,&c.  3  0hio,  89.     Johns.  212.     See  Co.  Lit.  145  a;  Hey- 

3  Pierrepont  v.  Bernard,  5  Barb.  364.     ward's  case,  2  Rep.  36  a,  b. 


(a)  A  distinction  has  been  made,  between  a  license  of  profif  or  profit  a 
prendre,  and  a  personal  license  of  pleasure ;  the  former  of  which  may  be 
exercised  by  an  agent.  Winckham  v.  Hawker,  7  Mee.  &  W.  63.  A  license 
to  search  for,  raise  and  carry  away  metals  and  convert  them  to  the  party's 
own  use,  has  been  held  assignable.     Muskett  v.  Hill,  5  Bing.  N.  694. 


CH. 


^II.l  LICENSE.  133 


the  house,  given  by  the  party^»  from  whom  the  estate  to 
which  the  common  was  appurtenant  came  to  the  defendant. 
Held,  the  distinction  between  the  abandonment  and  acqui- 
sition of  the  right  in  an  easement,  which  was  contended  for 
in  support  of  the  replication,  applied,  if  at  all,  only  as  be- 
tween the  original  parties,  and  not  as  against  the  defendant, 
a  subsequent  grantee.' 

22.  So,  a  parol  license  from  A.  to  B.,  to  take  trees  from 
A.'s  land  so  long  as  B.  pleases,  expires  with  the  death  of  A.'-^ 
But  where  the  defendant  gave  a  written  license  to  A.  and  B. 
to  take  logs  from  the  plaintiff's  land,  and,  after  the  death  of 
A.,  B.,  under  his  license,  and  without  intimation  from  the 
defendant  of  a  revocation,  took  the  logs ;  held,  the  license 
was  not  revoked  by  the  death  of  A.,  but  the  defendant  was 
liable  in  trespass.^ 

23.  Upon  the  same  principle,  the  time  of  executing'  a 
license  is  not  to  be  extended  beyond  its  strict  terms.  Thus, 
a  general,  parol  license,  to  cut  and  carry  away  wood  grow- 
ing upon  land,  if  available  at  all,  must  be  acted  upon  within 
reasonable  time  ;  and  applies  only  to  the  w^ood  as  it  is  sub- 
stantially at  the  time  of  giving  the  license.  What  is  a 
reasonable  time,  the  facts  being  agreed,  is  for  the  Court. 
Such  license  does  not  continue  fifteen  years,  not  being  acted 
upon.^ 

24.  Devise  to  A.'s  children,  of  "  a  plantation  to  come  into 
their  possession,  or  into  the  hands  of  the  executors  for  their 
benefit,  at  the  testator's  death,  providing  that  A.  have  the 
privilege  of  living  on  the  place  with  his  children  during  his 
life."  Held,  A.  did  not  take  a  life-estate,  but  his  title  was 
under  a  license,  and  of  A.'s  children  only  those  took  who 
were  in  esse  at  the  testator's  death.^ 

25.  Upon  the  same  principle,  a  conveyance  by  the  owner 
of  the  land  puts  an  end  to  a  license  for  an  easement ;  and 


'  Perry  r.Fitzhugh,  8  Qu.  B.  757.  *  Gilmore  v.  Wilbur,  12  Pick.  120. 

2  Putiiev  V.  Day,  6  N.  H.  430.  ^  Callioun  v.  Jester,  1  Jones,  474. 

8  Cliaudler  v.  Spear,  22  Verm.  388. 

12 


134  LAW   OF   VENDORS   AND   PURCHASERS.  [CO.  VIII. 

• 

the  licensee,  afterwards  eltt^ering,  though  without  notice  of 
the  deed,  is  liable  in  trespass  to  the  purchaser.'  Thus,  a 
license  to  erect  a  house  on  one's  land,  for  the  use  of  the 
builder,  does  not  affect  the  title  of  a  purchaser  of  the  land, 
without  notice ;  and  such  notice  is  not  to  be  inferred  from 
occupation  of  the  house.^  (a) 

26.  A.,  the  owner  of  land,  gave  B.  liberty  to  erect  a  dwell- 
ing house  for  his  use  thereon.  B.  erected  it  accordingly,  and 
lived  therein  eleven  years,  when  he  died  ;  having  executed  a 
deed  of  such  house  to  the  plaintiff,  his  son.  A.  had  previ- 
ously conveyed  the  land  to  the  defendant,  by  deeds  contain- 
ing no  notice  or  exception  of  such  license.  The  defendant 
brought  ejectment  for  the  land  and  house  against  the  party 
in  possession,  recovered  judgment,  and,  by  virtue  of  an  exe- 
cution, was  put  in  possession,  and  so  continued  more  than  a 
year,  when  he  took  down  the  house,  thereby  destroying  it  as 
such,  but  did  not  take  away  the  materials.  The  plaintiff  then 
brings  an  action  of  trespass.  Held,  the  defendant  was  not 
liable.^ 

27.  In  regard  to  the  revocation  of  licenses,  a  very  fruitful 
subject  of  discussion  has  been,  whether  a  license  can  be  re- 
voked, after  it  has  been  executed;  and,  if  so,  whether  only 
upon  the  terms  of  a  reasonable  indemnity  to  the  party,  who 
may  have  acted  and  incurred  expense  under  and  upon  the 
faith  of  such  license. 

28.  The  weight  of  authority  upon  this  subject  is,  that, 
where  title  to  real  estate  is  not  involved,  a  license  is  not  re- 
vocable, after  it  has  been  executed,  or  rather  executed  in 

1  Wallis   V.  Harrison,   4   M.  &  "W.        ^  PrJnce  v.  Case,  10  Conn.  375. 
538.  3  Ibid. 

(a)  Such  license  Is  also  a  personal  privilege,  not  extending  to  heirs  or  as- 
signs ;  and,  whether  countermandable  or  not  during  the  life  of  the  builder, 
expires  at  his  death.  Whether  any  notice  to  remove  the  building,  after  his 
death,  be  necessary  or  not,  a  subsequent  recovery  in  an  action  of  ejectment, 
by  the  grantee  of  the  land,  with  possession  taken  and  held  for  more  than  a 
year,  is  sufficient  notice. 


Cir.  VIII.]  LICENSE.  135 

part,  to  the  injury  of  the  party  who  has  acted  under  it. 
Several  cases  have  been  already  referred  to  in  the  present 
chapter,  which  illustrate  this  point.  The  following  may  be 
added,  as  turning  more  directly  upon  the  question  of  re- 
vocation. 

29.  Oral  agreement  of  the  plaintiff  with  the  defendant, 
that  the  latter  might  cut  trees  on  land  of  the  former,  peel 
them,  and  take  the  bark.  The  defendant  having  cut  and 
peeled  the  trees,  the  plaintiff  forbids  his  entering  to  take  the 
bark,  and  brings  an  action  of  trespass  for  such  entry.  Held, 
the  action  did  not  lie,  because  the  bark,  when  peeled,  became 
the  property  of  the  defendant,  and  was  on  the  plaintiff's  land 
by  his  consent,  and  the  defendant  therefore  had  a  right  to 
remove  it.  Had  the  plaintiff  done  so,  he  would  have  been 
liable  in  trover.^ 

80.  Sale  of  mulberry  trees  in  a  nursery,  raised  to  be  sold 
and  transplanted,  with  a  license  to  enter  and  remove  them. 
Held,  the  sale  passed  no  interest  in  the  land  within  the 
statute ;  that  the  license  was  revocable,  but,  if  revoked  in 
violation  of  the  agreement  to  sell  the  trees,  and  give  liberty 
to  enter  and  remove  them,  to  the  prejudice  of  the  purchaser, 
the  vendor  would  be  liable  for  damages  ;  the  contract  bind- 
ing him,  either  to  remove  the  trees  himself,  or  permit  the  pur- 
chaser to  do  it.^ 

31.  So  in  an  old  case  it  is  held,  that  a  license,  coupled  with 
the  grant  of  an  interest,  is  irrevocable,  so  far  as  it  is  essen- 
tially necessary  to  the  enjoyment  of  the  grant.  Thus,  if  one 
permit  another  to  cut  down  a  tree  on  the  land  of  the  former, 
and  to  come  on  the  land,  at  any  subsequent  period,  for  the 
purpose  of  removing  it,  this  is  said  to  amount  to  the  grant 
of  an  absolute  interest  in  the  tree,  as  soon  as  the  permission 
to  cut  it  has  been  executed ;  and  the  license  is  irrevocable, 
so  far  as  essential  to  the  possession  and  enjoyment  of  the 
grant.-^     And,  in  another  case,  it  is  said,  "  A  license  under 

1  Nettlcton  v.  Sikes,  8  Met.  34.  ^  Thomas  v.  Sorell,  Vaughan,  35. 

2  Whitmarsh  v.  Walker,  1  Met.  313. 


136  LAW    OF    VENDORS   AND   PURCHASERS.  [ciI.  VIII. 

seal  (provided  it  be  a  mere  license)  is  as  revocaljje  as  a 
license  by  parol ;  and,  on  the  other  hand,  a  license  by  parol, 
coupled  with  a  grant,  is  as  irrevocable  as  a  license  by  deed  ; 
provided  only  that  the  grant  is  of  a  nature  capable  of  being 
made  by  parol."  ^ 

32.  But  the  class  of  cases,  in  connection  with  which  these 
questions  have  chiefly  arisen,  has  been  that  of  solid  and 
permanent  erections,  constructions,  or  excavations  —  such  as 
buildings,  dams,  sluiceways,  &c.  —  by  the  party  licensed, 
upon  the  land  of  the  party  licensing,  necessarily  involving 
time,  labor,  and  expense,  and  the  chief  value  of  which  con- 
sists in  the  continuing  right  to  hold  and  use  them.  It'  is  diffi- 
cult to  deduce  from  the  authorities  any  well-defined  rule 
upon  these  points  of  discussion.  They  involve,  in  its  most 
practical  application,  the  very  nice  and  shadowy  distinction 
already  adverted  to,  between  a  license  and  an  easement ;  or 
rather,  if  the  doctrine  were  adopted  without  qualification, 
that  an  executed  license  is  irrevocable,  it  is  quite  obvious 
that  the  distinction  in  question  would  cease  to  exist ;  be- 
cause the  class  of  works  above  referred  to  are,  in  the  fullest 
sense  of  the  word,  easements,  and,  in  a  very  large  proportion 
of  cases,  no  question  arises  in  regard  to  them,  until  after 
they  have  been  completed  and  put  in  actual  operation.  Ac- 
cordingly, in  a  leading  case  upon  this  subject,  already  cited,^ 
which  was  an  action  of  trespass  qu.  clans,  for  entering  the 
close  of  the  plaintiffs,  and  digging  up  the  soil ;  the  defendant 
having  pleaded  a  license  to  erect  and  maintain  a  dam,  and 
an  entry  for  the  purpose  of  repairing  it ;  the  plea  was  held 
bad  on  demurrer,  as  being  in  effect  the  claim  of  an  ease- 
ment. The  case  would  of  course  have  been  still  stronger  for 
the  plaintiffs,  had  they  relied  upon  a  revocation  of  the  license 
by  way  of  replication.  But  the  remarks  of  the  court  pre- 
sent, in  a  strong  light,  the  general  difficulties  of  giving  to  a 
verbal  license  the  permanent  effect  contended  for  by  the  de- 


1  Per  Alderson,  B.     Wood  v.  Lead-        ^  Cook  v.  Stearns,  11  Mass.  533. 
bitter,  13  Mee.  &  W.  838. 


CH.  VIII.]  LICENSE.  137 

fendant.  "  Licenses  to  do  a  particular  act,"  says  Parker, 
C.  J.,  "  do  not  in  any  degree  touch  upon  the  policy  of  the 
law,  which  requires  that  bargains  respecting  the  title  or  in- 
terest in  real  estate,  shall  be  by  deed,  or  in  •Writing.  But  a 
permanent  right  to  hold  another's  land  for  a  particular  pui'- 
pose,  and  to  enter  upon  it  at  all  times,  without  his  consent, 
is  an  important  interest  which  ought  not  to  pass  without 
writing,  and  is  the  very  object  provided  for  by  our  statute. 
If  the  defendant  had  a  license  from  the  former  owners  of  the 
plaintiff's  close,  to  make  the  bank,  dam,  and  canal  in  their 
land,  this  extended  only  to  the  act  done,  so  as  to  save  him 
from  their  action  of  trespass  for  that  particular  act ;  but  it 
did  not  carry  with  it  an  authority  at  any  future  time  to  enter 
upon  the  land.  As  to  so  much  of  the  license  as  was  not 
executed,  it  was  countermandable  ;  and  transferring  the 
land  to  another,  or  even  leasing  it  without  any  reservation, 
would,  of  itself,  be  a  countermand.  If  the  defdHdant's  plea 
were  held  to  be  a  bar  to  the  action,  all  the  rniischiefs  and 
uncertainties  which  the  legislature  intended  to  avoid  by  re- 
quiring such  bargains  to  be  put  in  writing,  would  be  revived  ; 
and  purchasers  of  estates  would  be  without  the  means  of 
knowing  whether  incumbrances  existed  or  not,  on  the  land 
which  they  purchased." 

33.  The  same  doctrine  has  been  affirmed  by  many  other 
decisions.  Thus,  in  a  leading  English  case,  where  the  defend- 
ant, after  sanctioning,  and  actually  aiding  in  the  construc- 
tion of  a  sluice  by  the  plaintiff,  which  traversed  the  defend- 
ant's land,  stopped  up  the  sluice ;  held,  he  was  not  liable  to 
an  action.^ 

34.  Trespass  for  assault  and  false  imprisonment.  Plea, 
that  at  the  time  of  the  supposed  trespass,  the  plaintiff  was  in 
a  close  of  Lord  E.,  and  the  plaintiff,  as  the  servant  of  Lord 
E.,  and  at  his  command,  molliter  manus   imposuit  on  the 


1  rcntimani!.  Smith,4E.  107;  Rug-  Wend.   380;  Houghtailing   v.  Hough- 

gles   V.   Lcsure,  4  Pick.  187;  Stevens  tailing,  5  Barb.  379 ;   Hays  «.  Eiciiard- 

V.    Stevens,    II    Met.    251  ;    Coburn,  1  son,  1  Gill  &  J.  366;  Den  v.  Baldwin, 

Cow.  568  ;    Muraford   v.  Whitney,   15  1  Zabr.  390. 

12* 


138  LAW    OF    VENDORS    AND    PURCHASERS.  [cil.  VIII. 

plaintifT,  to  remove  him  from  tlie  suid  close,  which  was  the 
trespass  complained  of.  Replication,  that  the  plaintiff  was 
in  the  close  by  the  leave  and  license  of  Lord  E.,  which  was 
traversed  by  Ifte  rejoinder.  The  evidence  was,  that  Lord 
E.  was  the  steward  of  the  Doncaster  races  ;  that  tickets  of 
admission  to  the  grand  stand  were  issued,  with  his  sanction, 
and  sold  for  a  guinea  each,  entitling  the  holders  to  come 
into  the  stand  and  the  inclosure  round  it,  during  the  races ; 
that  the  defendant,  by  order  of  Lord  E.,  desired  him  to  leave 
it,  and  on  his  refusing  to  do  so,  the  defendant,  after  a  reason- 
able time,  put  him  out,  using  no  unnecessary  violence,  but 
not  returning  the  guinea.  Held,  the  jury  were  properly 
directed  to  find  for  the  defendant;  that  a  right  to  come  and 
remain  for  a  certain  time  on  the  land  of  another  can  be 
granted  only  by  deed  ;  and  a  parol  license  to  do  so,  though 
money  be  paid  for  it,  is  revocable  at  any  time,  and  without 
paying  baclPthe  money.' 

35.  Bill  in  equity  for  the  abatement  of  a  nuisance,  alleged 
to  be  a  mill-dam  on  the  plaintiff's  land.  It  appeared  that 
A.  gave  to  the  defendant  a  verbal  license  to  erect  and  con- 
tinue a  mill-dam  on  A.'s  land,  and  to  dig  a  ditch  through 
the  land,  for  conveying  water  to  a  mill  which  the  defendant 
Avas  about  to  erect  on  his  own  land.  The  defendant  made 
the  dam,  dug  the  ditch,  and  afterwards  erected  the  mill,  and 
continued  them  during  A.'s  life.  After  granting  the  license, 
A.  conveyed  his  land  to  the  plaintiff,  without  reservation. 
The  defendant  continued  the  dam  and  ditch  after  A.'s  death, 
for  the  purpose  of  working  the  mill.  The  plaintiff",  having 
requested  him  to  remove  the  dam,  and  fill  up  the  ditch,  upon 
his  refusal,  attempted  to  remove  the  dam,  and  tore  down 
part  of  it  ;  whereupon  the  defendant  interfered  by  force,  pre- 
vented further  proceedings,  and  repaired  the  dam.  The 
plaintiff  then  brings  this  bill,  and  a  jury,  upon  an  issue  sub- 
mitted to  them,  found  the  dam  to  be  a  nuisance.  Held,  the 
plaintiff  was  entitled  to  a  decree  for  abatement,  and  a  per- 

1  Wood  V.  Leadbitter,  13  Mees.  &  Welsb.  338. 


CH.  VIII.]  LICENSE.  139 

petual  injunction  ;  that  the  defendant  was  not  liable  for  any 
thing  done  before  revocation  of  the  license,  and  therefore  not 
chargeable  with  the  expenses  of  removing  the  old  dam ;  but 
that  he  was  liable  for  building  m.  new  dam  or  repairing  the 
old  one,  after  such  revocation,  and  for  the  expense  of  abating 
the  new  dam.^ 

36.  In  1769,  a  parish  erected  a  meeting-house  on  land 
granted  them  by  the  town,  and  some  of  the  parishioners 
erected  sheds  on  the  land.  In  1801,  other  sheds  were  built 
by  authority  of  the  parish.  In  1815,  the  sheds  were  blown 
down,  and  the  parish,  proposing  to  erect  a  new  house  of  wor- 
ship in  another  place,  voted  not  to  authorize  the  reerection 
of  the  sheds  in  the  former  site,  and  appointed  the  defendants 
to  be  a  committee  to  regulate  the  place  and  mode  of  erect- 
ing new  sheds  ;  and  the  former  owners  erected  new  sheds, 
under  direction  of  the  committee,  on  other  parts  of  the  land. 
The  plaintiff,  one  of  the  old  proprietors,  was  notified  by  the 
defendants  to  remove  his  shed,  and,  upon  his  faihng  to  do 
so,  the  defendants  removed  it,  and  the  plaintiff  brings  an 
action  of  trespass  against  them  for  so  doing.  Held,  the 
plaintiff  was  not  a  tenant  at  sufferance,  the  relation  of  land- 
lord and  tenant  never  having  existed  between  the  parties, 
but  the  parish  merely  having  permitted  the  parishioners  to 
place  their  sheds  on  the  ground  as  a  matter  of  accommoda- 
tion and  favor  ;  that  no  right  or  title  to,  or  easement  in,  the 
land  was  thus  acquired ;  but  that  the  parish  might  at  pleas- 
ure revoke  the  license.^ 

37.  But,  on  the  other  hand,  it  has  been  held  in  New  Hamp- 
shire, in  case  of  a  parol  license  to  erect  a  dam,  for  the  benefit 
of  both  parties,  that,  after  execution,  it  could  not  be  revoked, 
without  a  tender  of  the  expense  of  erecting  it.^  So  it  has  been 
held,  that  a  license  to  build  and  maintain  a  bridge  on  another's 
land  was  either  irrevocable,  or  else  could  not  be  revoked,  ex- 
cept on  payment  of  all  expense  and  damage.     The  court 

1  Stevens  v.  Stevens,  11  Met.  251.  ^  Woodbury   v.   Parshley,  7    N.   H. 

2  Bachelder  v.  Wakefield,  8  Cush.  243.         237. 


140  LAW   OF  VENDORS  AND   PURCnASERS.  [("II.  VIII. 

say,  "  A  license  to  an  individual,  to  do  an  act  beneficial  to 
him,  but  requiring  an  expenditure  upon  another's  land,  is 
held  not  to  be  revocable  after  it  has  been  once  acted  upon. 
Such  a  license  is  a  direct  eiS'ouragement  to  expend  money  ; 
and  it  is  said  it  would  be  against  conscience  to  revoke  it,  as 
soon  as  the  expenditure  begins  to  be  beneficial.  A  license 
to  erect  a  bridge  for  the  taking  of  toll,  is  clearly  distinguished 
from  a  mere  easement  of  passing  and  repassing ;  and  we 
think  when  it  is  once  executed,  it  is  either  irrevocable  while 
the  bridge  continues,  or  if  revocable  at  all,  can  only  be  on 
full  compensation  for  all  expenditures  made,  and  damage 
occasioned,  by  such  revocation."  ^ 

38.  So  it  has  been  held  in  Maine,  that  if  there  be  a  parol 
agreement  for  a  right  of  way,  or  other  interest  in  land,  and  any 
acts  be  done  in  pursuance  thereof,  which  are  prejudicial  to  the 
party  performing  them,  and  are  in  part-execution  of  the  con- 
tract, the  agreement  is  valid,  notwithstanding  the  Statute  of 
Frauds.  Therefore,  the  owner  of  land  having,  for  valuable 
consideration,  given  license  to  another  by  parol  to  build  a 
bridge  on  his  land,  an  action  of  trespass  will  lie  against  the 
former  for  taking  away  the  bridge,  without  the  consent  of 
the  latter .2 

39.  Trespass  qu,  claus.  Goods  upon  the  plaintiff's  land 
were  sold  to  the  defendant;  by  the  conditions  of  sale,  to 
which  the  plaintiff  was  a  party,  the  buyer  being  allowed  to 
enter  and  take  the  goods.  The  defendant,  having  entered 
to  take  them,  justifies  under  a  plea  of  leave  and  license,  to 
which  the  plaintiff  replies  de  injuria.  Held,  the  defendant 
was  entitled  to  a  verdict,  though  the  plaintiff'  had,  between 
the  sale  and  the  entry,  locked  the  gates,  and  forbidden  the 
defendant  to  enter,  and  defendant  had  broken  down  the 
gates,  and  entered  to  take  the  goods,  the  plaintiff,  after  the 
sale,  not  having  power  to  revoke  the  license.^ 


1  Ameriscoggin,  &c.  v.  Bragg,  UN.        ^  Wood  v.  Manley,  II  Adol.  &  Ellis, 
H.  102.  34. 

2  Kicker  y.  Kelly,  1  Greenl.  117. 


CH.  Vin.]  LICENSE.  141 

40.  So,  a  parol  license,  to  put  a  sky-light  over  the  defend- 
ant's area,  (which  impeded  the  light  and  air  from  coming  to 
the  plaintiff's  dwelling-house  through  a  window,)  cannot  be 

.  recalled  at  pleasure,  after  it  has  been  executed  at  the  defend- 
ant's expense  ;  at  least,  not  without  tendering  the  expenses 
he  had  been  put  to ;  and  therefore  no  action  lies  as  for  a 
private  nuisance,  in  stopping  the  light  and  air,  &c.,  and  com- 
municating a  stench  from  the  defendant's  premises  to  the 
plaintiff's  house,  by  means  of  such  sky-lightJ 

41.  The  remarks  quoted  above  (§  37,)  and  similar  ones 
in  other  cases,  seem  to  pass  beyond  the  technical  doctrine 
of  license,  to  the  distinct,  though  analogous  title  by  estoppel; 
which,  however,  if  indiscriminately  applied  to  all  cases  of 
verbal  acquiescence  in  the  permanent  use  of  real  property, 
would  at  once  do  away  with  the  strict  rules  relating  to  the 
mode  of  creating  an  easement.  There  is  another  class  of 
cases,  somewhat  favoring  this  view  of  a  license,  according  to 
which,  one  party  erecting  a  building  upon  the  land  of  another, 
by  permission  of  the  latter,  ow^ns  the  building  as  personal 
property .2  And,  moreover,  the  general  doctrine,  to  be  con- 
sidered in  the  next  chapter,  that  in  equity  part-performance 
of  a  parol  contract  renders  it  valid ;  if  carried  out  in  courts 
of  law,  would  seem  to  favor  the  theory  that  a  license  be- 
comes irrevocable  by  its  execution.  Still,  however,  as  al- 
ready stated,  the  weight  of  authority,  and  the  only  doctrine 
consistent  with  the  security  of  title  to  real  estate,  is,  that  no 
permanent  ownership  can  be  thus  created. 

1  Winter  i'.  Brockwell,  8  East,  308.  Woodburv.  15    Pick.  1.56;    Marcey  v. 

2  Russell  V.  Richards,  2  Fairf.  371  ;  Darlinn;,  8  Pick.  283  ;  Wood  v.  Hcwett, 
Ashmun  v.  Williams,  8  Pick.  402;  8  Q.  B.  913;  White's,  &c.,  10  Barr, 
Wells  V.  Bannister,  4  Mass.  .514  ;  Cur-  2.52. 

tiss  V.  Iloyt.  19  Conn.   154  ;  Rogers  v. 


142 


LAW    OF   VENDORS    AND   PURCHASERS. 


[CH.  IX. 


CHAPTBR    IX. 


PART-PERFORMANCE. 


1.  License  and  part-performance. 

2.  Part-]H'rf()nii;uice,  at  law. 

5.  p]iitin'  performance,  in  Equity. 

6.  Part-[)erformance  in  Equity. 

7.  Who    may  avail   himself  of  part- 
performance. 

8-20.  What  acts  are  sufficient. 
10.  Proof  of  the  terms   of   a   parol 
agreement. 


11.  Decided  cases. 
1.5.  l^arol  partition. 

17.  Tlie  effect  of  jiart-performance  is 
founded  on  f mud. 

18.  Ktiect  of  pai/nirnt. 

24.  Doctrine  in  the  United  States. 

25.  Compensation  for   expenditures, 
&c. 


1.  Having  in  the  last  chapter  considered  that  important 
exception  or  qualification  to  the  Statute  of  Frauds,  as  ap- 
plied to  the  sale  and  purchase  of  lands,  which  grows  out  of 
what  is  termed  in  law  a  license,  we  now  proceed  to  speak  of 
another  equally  important,  arising  from  part-performance  of 
a  parol  agreement.  We  have  already  adverted  to  the  obvious 
analogy  between  these  two  topics,  (ch.  8.) 

2.  It  has  been  sometimes  held,  that  the  same  construction 
of  the  Statute  of  Frauds  is  to  prevail  at  law  and  in  equity, 
and  therefore  that  part-performance  of  a  parol  agreement 
takes  it  out  of  the  statute,  alike  in  both  tribunals.^ 

3.  Action  on  the  case,  for  breach  of  an  agreement  to  sell 
and  convey  to  the  plaintiff,  in  fee-simple,  a  tract  of  land. 
The  plaintiff  offered  parol  evidence  of  the  agreement,  pay- 
ment of  the  consideration,  the  defendant's  subsequent  ac- 
knowledgment of  the  sale  and  payment;  and  of  the  defend- 
ant's refusal  to  execute  a  conveyance.  Held,  the  agreement 
having  been  executed  by  one  of  the  parties,  the  action  could 
be  maintained.^     So,  the  statute  does  not.  avoid  a  note  for 


1  Brodie  v.  St.  Paul,  1  Ves.  326, 


Bell  V.  Andrews,  4  Dall.  152. 


en.  IX.  j  PART-PERFORMANCE.  143 

the  purchase-money  of  land  sold  by  parol,  but  of  which  the 
purchaser  has  taken  possession.'  So,  a  grantor  may  nniain- 
tain  an  action  for  a  part  of  the  consideration  expressed  in 
the  deed  to  have  been  paid,  but  which  by  mistake  was 
not  paid,  Parker,  C.  J.,  says  :  "  It  is  not  a  case  within  the 
Statute  of  Frauds,  because  it  is  not  a  contract  for  the  sale 
of  lands.  That  contract  was  executed  and  finished  by  the 
deed.  This  is  only  a  demand  for  money  arising  out  of  that 
contract."  ^ 

4.  But  the  prevailing  rule  is,  that  the  doctrine  of  equity, 
by  which  payment  of  part  of  the  purchase-money  on  a  parol 
contract,  and  taking  possession  of  the  premises  under  the 
contract,  take  the  case  out  of  the  statute,  does  not  prevail  in 
courts  of  law.^  So,  it  seems,  that  at  law,  nothing  short  of  a 
full  and  complete  performance,  by  one  party,  of  an  agree- 
ment within  the  statute,  will  take  it  out  of  the  operation  of 
the  statute.  As  where  nothing  remains  but  to  pay  over  the 
money  received,  in  which  case  the  statute  furnishes  no  de- 
fence.* Thus,  at  law,  a  parol  contract  for  the  sale  of  land 
is  void,  notwithstanding  possession  and  improvements  by  the 
purchaser  ;  and  money  paid  thereon  may  be  recovered  back 
from  the  vendor  or  his  heirs,  they  being  unable  or  failing  to 
perform  the  contract.^  So,  a  promise  by  a  father  to  give  his 
son  a  tract  of  land  by  his  will,  followed  by  expenditure  in 
improvements,  not,  however,  in  execution  of  the  contract,  or 
at  the  father's  request,  is  without  consideration,  and  cannot 
be  enforced.^  So,  a  parol  promise  to  give  real  estate,  posses- 
sion taken  by  virtue  of  such  promise,  and  valuable  and 
permanent  improvements  made  with  the  consent  of  the 
owner,  furnish  no  ground  for  a  decree  enforcing  the  promise.'^ 
So,  assumpsit  does  not  lie,  upon  an  agreement  of  the  de- 


'  Gillespie  y.  Battle,  15  Ala.  276.  ^  gailors    v.   Gambril,    1    Cart.    88; 

2  Wilkinson  v.  Scott,  17  Mass.  249,  Barickman   v.    Kuykendall,    6    Blackf. 
258.  21. 

3  Barickman  v.  Kuykcndall,  6  Blackf.  «  McClure  v.  McClure,  1  Barr,  374, 
21.  379. 

*  Eaton  V.  Whitaker,  18  Conn.  222 ;  ^  Ridley  v.  M'Nairy,  2  Humph.  174. 
Linscott  V.  M'Intire,  15  Maine,  201. 


144  LAW   OF   VENDORS   AND   rURCIIASERS.  [clf.  IX. 

fendant  with  the  plaintiff,  to  convey  to  him  land  on  one  side 
of  a  highway,  in  consideration  of  the  plaintiff's  consenting 
to  the  taking  of  his  own  land  on  the  other  side  of  the  high- 
way, without  any  claim  for  aamages;  although  the  plaintiff 
has  performed  his  part  of  the  contract.  Dewey,  J.,  says  : 
"  Svich  a  doctrine  (that  of  part-performance,)  has,  under 
proper  limitations,  often  been  recognized  in  the  Courts  of 
Equity,  where  it  was  required  in  furtherance  of  justice,  and 
to  prevent  manifest  fraud  ;  but  it  has  obtained  no  permanent 
sanction  as  a  principle  of  jurisprudence  in  the  courts  of  law. 
Several  of  the  cases  above  cited  will  be  found  to  have  pre- 
sented strong  equitable  claims  for  the  interposition  of  the 
Court,  and  to  have  been  cases  where  the  defendants  had 
ireceived  benefit,  to  a  very  considerable  extent,  from  the 
execution  of  the  contract  by  the  plaintiffs  ;  but  the  Court 
nevertheless  maintained  the  doctrine  that  damages  could 
not  be  given  at  law  for  the  non-performance  of  a  contract  to 
convey  lands,  which  was  not  in  writing ;  and  that  it  would 
not  avail,  though  a  part-performance  was  shown,  even  if  it 
appeared  that  the  party  was  remediless,  if  he  could  not 
resort  to  his  action.' 

5.  It  will  be  presently  seen,  that  a  different  rule  prevails 
in  equity,  even  with  reference  to  part  performance  of  a  verbal 
contract.  A  fortiori,  it  is  held,  that  in  equity,  a  full,  substan- 
tial j)erformance  on  both  sides  will  take  the  case  out  of  the 
statute,  notwithstanding  any  legal  defect  or  informality. 
Thus,  on  a  parol  agreement  made  sixty  or  seventy  years  ago, 
which  had  been  fully  performed  on  both  sides,  except  only  the 
complete  execution  of  a  deed,  a  specific  performance  was  de- 
creed.2  So,  as  has  been  seen,  (ch.  1,)  where  a  written  agree- 
ment for  the  purchase  of  an  estate  has  been  executed,  the  pur- 
chaser has  the  estate  in  equity,  and  it  will  pass  by  his  will, 
notwithstanding  a  subsequent  conveyance  of  the  legal  estate.^ 
So,  if  a  parol  agreement  has  been  executed  on  one  part,  and 

1  Adams  v.  Townsend,   1  Met.  483,        ^  Somerville  v.  Trueman,  4  Harr.  & 
485.  McHcn.  252. 

3  Rose  V.  Cunynghamc,  11  Ves.  550. 


CH.  IX.]  PART-PERFORMANCE.  145 

an  enjoyment  had  accordingly,  equity  will  not  destroy  or 
avoid  itJ  The  Statute  of  Frauds  in  such  case  is  no  de- 
fence.'-^ 

6.  The  same  general  principle  has  been  still  further  ex- 
tended, so  as  to  apply  not  merely  to  a  complete,  though 
informal  performance,  but  also  to  a  mere  part-performance  ; 
and  the  prevailing  rule  in  Courts  of  Equity  is,  that,  although 
a  contract  for  the  sale  and  purchase  of  lands  is  void  or 
voidable,  under  the  Statute  of  Frauds,  for  want  of  a  writing 
signed  by  the  party  to  be  charged,  yet,  where  the  purchaser 
takes  possession  in  pursuance  of  such  agreement,  and  with 
the  vendor's  assent,  the  Court  will  decree  an  execution  of 
the  contract ;  more  especially  where  he  has  made  improve- 
ments on  the  land  occupied  without  interruption,  and  where 
the  Vendor  has  often  recognized  the  sale,  and  the  purchase- 
money  has  been  paid.^  (a)  The  Statute  of  Frauds  was 
designed  to  exclude  oral  evidence  of  the  agreement  of  sale  ; 
not  oral  evidence  of  the  acts  of  part-performance,  or  things 
done  in  execution  of  the  agreement*  (b)  And  part-perform- 
ance has  no  other  effect,  except  that  the  plaintiff  is  thereby 
let  in  to  prove  the  agreement  aliunde,  where  it  is  not  con- 

1  Lockey  w.  Lockey,  Prec.  Cha.  518.  479;  Massey  v.  M'llwain,  2  Hill,  Ch. 

2  Ayk'sford's  case,  2  Stra.  783;  Pawle  426  ;  Moore  v.  Beasley,  3  Ham.  (Ohio), 
u.Gunn,  4  Bing.  N.  445.  294  ;  Wilber  v.  Pain,  1  lb.  251  ;  Shirley 

3  Clerk  I'.  Wright,  1  Atk.  12  ;  Gunter  v.  Spencer,  4  Gilm.583;  Keats  i'.  Rec- 
V.  Halscy,  Ambl.  586 ;  Newton  v.  Svva-  tor,  1  Ark.  391  ;  Thornton  v.  Henry, 
zey,  8N.  Hamp.  9,  13;  Tiltonw.  Tilton,  2  Scam.  216:  Wetmore  v.  White, 
9  iSf.  Hamp.  386,  390  ;  Brock  v.  Cook,  3  2  Caines'  Cas.  87. 

Porter,  464 ;  Annan  v.  Merritt,  13  Conn.        *  Hall  v.  Hall,  1  Gill,  383. 


(cr)  A  fortiori,  where  the  whole  purchase-money  for  land  was  paid,  and 
possession  delivered  according  to  a  parol  contract,  the  agreement  was  held 
not  within  the  statute.  Ellis  v.  Ellis,  1  Dev.  Eq.  180 ;  Tibbs  v.  Barker,  1 
Black.  58. 

(b)  But  the  mere  declarations  of  the  vendee  that  he  had  purchased  the 
land,  and  was  the  owner,  unaccompanied  by  any  act  in  pursuance  of  them, 
want  all  the  essential  attributes  of  part-performance.  They  are  merely 
parol  evidence  of  the  agreement.  Anderson  v.  Chick,  1  Bailey,  Eq.  118,, 
124. 

13 


w^. 


146  LAW   OF   VENDORS    AND    PURCHASERS.  [CH.  IX. 

fessed.^  Thus,  when  a  fair,  honost,  verbal  agreement,  for 
the  sale  of  land,  is  aUeged  in  a  bill  and  admitted  in  the 
answer,  or  when  it  appears  clearly  that  such  an  agreement 
has  been  made,  and  has  been  perforwied  on  one  part,  or 
something  has  been  done  in  pursuance  of  it,  the  Court  of 
Chancery  will  decree  a  conveyance  immediately,  or  on  the 
proper  terms.^  And  where  there  are  several  parcels  sold  by 
one  parol  contract,  it  suffices  if  the  vendee  pays  the  price 
and  goes  into  possession  of  one  parcel  only.^  Thus,  the 
complainant's  bill  alleged  a  contract  for  the  whole  of  a 
square  of  ground,  payment  of  the  purchase-money,  and  pos- 
session under  the  contract.  The  answer  denied  the  contract 
as  to  the  whole  square,  but  admitted  it  as  to  a  part ;  and 
also  denied  payment  of  the  purchase-money,  and  possession 
of  the  whole  square.  Decreed,  that,  on  payment  of '  the 
whole  purchase-money  and  interest,  the  defendant  should 
convey  the  part  of  the  square.^  So,  where  a  parol  contract 
is  made  for  the  sale  of  two  parcels  of  land  for  a  gross  price, 
and  the  vendor,  at  fhe  time  appointed,  conveys  one  only, 
and  agrees  to  convey  the  other  presently ;  and  the  vendee 
pays  the  whole  price,  and  enters  into  possession  of  both  on 
receiving  the  deed  ;  the  contract  is  not  merged  in  such  deed, 
nor  varied  by  the  vendee's  assent  to  the  delay,  as  to  the  other 
parcel.  So,  the  agreement  to  give  a  deed  of  the  latter  is  not 
a  new  parol  contract,  or  a  substitute  for  the  first  agreement ; 
but  the  conveyance  is  a  part-performance  of  the  original 
contract.^ 

7.  With  regard  to  the  party,  who  may  avail  himself  of 
part-performance,  it  is  held,  that,  after  delivery  of  possession, 
in  pursuance  of  a  parol  contract,  the  vendee,  as  well  as  the 
vendor,  may  insist  on  a  specific  execution  of  the  contract.^ 
But,  on  the  other  hand,  part-performance  is  not  ground  for 

^  Thompson  v.  Tod,  1  Peters,  C.  C.  *  Graham  v.  Yeates,  6  Harr.  &  John. 

388.  229. 

2  Simmons  y.  Hill,  4  Harr.  &  M'Hen.  ^  Smith  v.  Underdunck,  1  Sandf. 
252.  579 

3  Smith  V.  Underdunck,  1  Sandf.  579,  «  Tugh  v.  Good.  3  W.  &  S.  56. 
581. 


CH.  IX.]  PART-PERFORMANCE.  147 

holding  a  party  who  has  done  the  acts  to  his  own  prejudice, 
unless  they  are  also  a  prejudice  to  the  plaintiff;  because  the 
doctrine  of  part-performance  is  founded  on  fraud.'  (a) 

8.  Acts  merely  introductory  or  ancillary  will  not  constitute 
part-performance,  though  attended  with  expense.  As,  for 
example,  delivery  of  an  abstract,  giving  directions  for  con- 
veyances, going  to  view  the  estate,  fixing  upon  an  appraiser, 
making  valuations,  &c.^  Thus,  where  one  who  had  verbally 
agreed  for  the  purchase  of  an  estate  in  confidence  thereof 
gave  orders  for  conveyances  to  be  drawn,  and  went  several 
times  to  view  the  estate ;  held,  the  Court  would  not  carry 
such  agreement  into  execution,  but  the  Statute  of  Frauds 
might  be  pleaded  to  a  bill  brought  for  that  purpose.^  So,  an 
agreement  was  made  by  parol,  that,  upon  the  plaintiff's  pro- 
curing a  release  from  a  third  person,  the  defendant  would 
convey.  The  plaintiff  procures  the  release  for  a  valuable 
consideration.  This  is  not  a  part-performance.*  So,  putting 
a  deed  into  the  hands  of  a  solicitor,  to  prepare  a  conveyance, 
is  not  a  part-performance  of  a  parol  agreement,  which  takes 
it  out  of  the  Statute  of  Frauds.^  So,  possession,  when  set 
up  as  an  act  of  part-performance,  must  be  unequivocally, 
directly,  and  solely  referable  to  the  identical  agreement  alleged 
in  the  bill.  It  must  be  either  delivered  by,  or  taken  with  the 
express  or  implied  consent  of,  the  vendor.  If  otherwise  ob- 
tained, it  cannot  avail.     Where  no  other  title  to  possession, 

1  Buckm.ister  v.  Harrop,  7  Ves.  341  ;  ^  Clerk  v.  Wright,  I  Atk.  12. 

Popham  V.  Evre,  Lofft,  786.  *  O'Reilly  v.  Thompson,  2  Cox,  271. 

■^  Whitchuich  v.  Bevis,  2   Bro.  559 ;  &  Redding  v.   Wilkes,  3  Bro.  C.  C. 

Whalcy  V.  Basenal,  6  Bro.  P.  C  645  ;  400. 
Whitbread  v.  Brockhurst,  1  Bro.  412. 


(a)  It  is  said,  that  a  parol  ajrreement,  which  by  reason  of  part-execution 
binds  the  party  himself,  will  also  bind  his  representatives  in  case  of  his 
death.  1  Sugd.  174.  See  Burkett  y.  Randall,  3  Men  466.  But  a  strong 
doubt  has  been  suggested,  whether  a  remainder-man  would  be  bound  in 
consequence  of  part-performance  by  the  particular  tenant ;  inasmuch  as  the 
doctrine  proceeds  upon  the  ground  of  fraud,  which  is  a  personal  matter. 
Shannon  v.  Bradstreet,  1  Sch.  &  Lef.  52. 


148  LAW    OF   VENDORS    AND    PURCHASERS.  [CH.  IX. 

and  no  other  origin  of  it  is  proved,  it  is  primd  facie  to  be 
referred  to  the  agreement.  But  if  the;  vendor's  assent  to  the 
possession  is  denied,  merely  suflering  the  party  to  ocenpy  for 
a  few  months  without  turning  him  out,  when  the  property 
was  of  trifling  value  as  to  profits,  and  no  improvements 
were  put  upon  it,  is  not  sufficient.^ 

9.  If  one  authorized  by  the  vendor  to  deliver  possession 
to  the  vendee  takes  a  lease  from  the  vendee,  and  enters  into 
actual  possession  ;  there  is  an  equitable  estate  in  the  lessor, 
which  is  bound  by  a  judgment  against  him.^  So,  payment 
of  the  purchase-money,  and  continuance  in  possession  by 
the  complainant  for  several  years,  who,  but  for  the  agree- 
ment was  a  trespasser,  were  held  to  take  a  parol  agreement 
for  the  sale  of  lands  out  of  the  statute.^  So,  a  bill  in  chan- 
cery stated,  that  M.  had  a  life-estate  in  all  the  tract  of  land 
called  Oliver's  Neck,  the  remainder  in  fee  being  in  C. ;  that 
C.  sold  to  M.  all  his  interest  in  the  land ;  that  the  purchase- 
money  was  paid  by  M.,  who  retained  possession  until  his 
death  ;  and  that  his  representatives,  the  complainants,  after- 
wards retained  possession.  The  testimony  did  not  establish 
the  claim  as  stated,  but  proved  a  contract  between  C.  and 
M.  for  one  fourth  part  of  the  tract ;  that  the  purchase-money 
was  paid  by  M.,  and  possession  of  the  land  permitted  to  be 
retained  by  him  under  the  contract.  Held,  the  complainants 
were  entitled  to  a  conveyance  of  the  one  fourth  ;  that  per- 
mitting the  possession  to  be  retained  was  equivalent  to  an 
actual  delivery,  and,  with  the  payment  of  the  purchase- 
money,  took  the  case  out  of  the  statute.*  But,  upon  a 
bill  for  specific  performance,  it  appeared  that  the  plaintiff, 
through  whose  land  the  defendants,  a  railroad  corporation, 
were  authorized  to  make  their  road,  gave  them  a  bond  to 

1  Jervis  y.  Smith,  1  Hoffm.  Ch.  470  ;  198;  Phillips  v.   Thompson,   1    Johns. 

Givens  i'.  Cnlder,  2  Dcsaiis.  171  .;  Hord  Ch.  131  ;  Blakeney  v.  Ferguson,  3  Eng. 

w.  Bowmiin,   I  Freem.  Ch.  290;  Smith  372. 

V.  Undcrdimck,   1    Saudf.  579  ;  Lord  o.         ^  Pagh  v.  Good,  3  W.  &  S.  .56. 
Underdunck,  lb.  46;  Thompson  y.  Scott,         ^  Smith  v.  Smith,  1  Rich.  Eq.  130. 
1  M'C.  Ch.  32  ;•  Carlisle  v.  Fleming.  1         *  Drury  v.  Conner,  6  Harr.  &  John. 

Harr.  421  ;  Eaton  v.  Whitaker,  18  Conn.  288. 
222 ;  Goodlme  v.  Barnwell,  1  Rice,  Eq. 


CH.  IX.]  PART-PERFORMANCE.  149 

convey  to  them  by  a  certain  day,  on  payment  of  a  certain 
price,  so  much  of  his  land  as  should  be  taken  by  them  by 
authority  of  law  for  their  road.  The  defendants,  within  the 
time  allowed  by  law,  entered  upon  and  took  the  land  ;  but, 
upon  the  plaintiff's  tendering  them  a  deed  on  the  day  ap- 
pointed, refused  to  pay  the  price.  Held,  the  bill  could  not 
be  maintained,  the  defendants  not  having  signed  any  written 
agreement.  Bigelow,  J.,  says  :  "  It  does  not  appear  that  the 
defendants  took  possession  of  the  land  under  the  contract. 
They  had  the  right,  under  their  acts  of  incorporation,  and 
the  general  statutes  of  the  Commonwealth,  to  enter  upon  the 
land  of  the  plaintiff  and  construct  their  railroad  over  it, 
without  any  contract,  and  even  against  the  consent  of  the 
owners.  For  aught  that  appears  in  this  case,  all  the  acts  of 
the  defendants,  relied  on  as  showing  part-performance  of  the 
conti'act,  were  done  under  the  rights  and  powers  conferred 
on  them  by  statute,  and  not  in  pursuance  of  the  contract."  ^ 

10.  With  what  degree  of  distinctness  and  certainty  the 
terms  of  the  contract  itself  are  to  be  shown,  in  order  to 
sustain  a  claim  upon  the  ground  of  part-performance,  has 
been  matter  of  somewhat  conflicting  decision.  The  prevail- 
ing rule,  however,  appears  to  be,  that,  to  obtain  specific  per- 
formance of  a  parol  contract  for  the  sale  of  lands,  it  must  be 
clearly,  fully,  and  satisfactorily  shown  what  the  agreement 
was,  and  that  the  plaintiff  has  performed,  or  has  been,  and 
is,  able  and  willing  to  perform,  his  part  of  the  contract.^ 

11.  The  following  cases  may  be  cited  as  illustrating  the 
general  principles  above  stated. 

12.  A  mother  desired  certain  persons  to  bear  witness,  that 
she  had  purchased  a  particular  tract  of  land  for  her  son, 
a  minor ;  and  verbally  agreed  with  her  brother,  acting  for 
the  son,  to  give  him  the  land,  in  consideration  of  the  son's 

1  Jacobs  y.  Peterborough,  &c.  8  Cush.  Carroll,  1  B.  &  Be.  265;  Reynolds  v. 
223-4.  Waring,   You.   346;    Mortimer   r.   Or- 

-  Thompson  v.  Scott,  1  M'C.  Ch.  32 ;  •  charfl,  2  Ves.  243;  5  Vin.  Alir.  523,  pi. 
Hall  V.  Hall,  1  Gill,  383  ;  6  Ves.  470 ;  40.  See  also  Allen  v.  Bower.  3  Bro. 
Symondson  d.  Tweed,  Free.  Ch.  374;  149;  Clinan  y.  Cooke,  1  Scho.  &L.  22; 
Forster  v.  Hale,  3  Ves.  712;  Savage  v.     Mundy  v.  Joliffe,  9  Sim.  413. 

13* 


150  LAW    OF   VENDORS   AND    PURCHASERS.  [CH.  IX. 

relinquishing  his  claim  to  his  father's  personal  estate.  The 
mother  gave  him  possession  of  tlu;  land,  which  the  son  used 
and  improved  as  his  ov^n  until  his  death,  jjaving  released 
his  claim  to  his  father's  personal  estate.  Held,  the  agree- 
ment should  be  specifically  performed.^ 

13.  Agreement  to  convey  to  trustees  for  creditors,  in  con- 
sideration of  an  extension.  The  trustees  took  possession, 
and  the  extension  was  granted.  Held,  the  contract  shoiAjJ 
be  specifically  performed.^ 

14.  Bill  in  equity  to  compel  performance  of  an  agreement 
to  lease.  The  defendant,  having  a  freehold  estate  in  land  of 
his  wife,  entered,  in  the  fall  of  the  year,  into  a  parol  agree- 
ment with  the  plaintiff,  that  he  would  erect  upon  the  land  a 
substantial  brick  store,  and  have  it  completed  by  the  first 
day  of  April  then  next ;  and  that  he  would  let  such  store  to 
the  plaintiff  for  three  years,  for  the  yearly  rent  of  $500,  to 
be  paid  quarterly.  He  erected  such  store,  and  the  plaintifi" 
immediately  took  possession,  and  occupied  for  one  year, 
paying  the  rent  quarterly.  During  the  year,  the  defendant 
gave  the  plaintiff  notice  to  quit,  and  brought  a  summary 
process  to  eject  him.     Held, 

1.  That  the  agreement  was  within  that  clause  of  the 
statute,  which  relates  to  the  sale  of  lands,  &c. 

2.  That  there  was  a  part-performance,  sufficient  to  take 
the  case  out  of  the  statute,  and  authorize  a  decree  for  specific 
performance. 

The  plaintiff',  after  the  erection  of  the  store,  and  before  the 
commencement  of  the  suit,  offered  to  the  defendant  a  writing 
in  the  form  of  a  lease,  to  be  executed  by  him,  providing,  that 
if  the  store  should  be  destroyed  by  fire,  or  rendered  unfit  for 
use,  the  payment  of  rent  should  cease,  until  it  should  be  put 
in  good  order  by  the  defendant.  The  defendant  refused  to 
execute  such  lease,  or  even  to  read  it,  saying,  "  I  have  no 
lease  to  execute."     Held, 


'  Simmons  v.  Hills,  4  Harr.  &  McH.        ^  Moale    v.  Buchanan,    1 1    Gill    & 
^52.  John. 314. 


CII.  IX.]  PART-PERFORMANCE.  151 

1.  He  was  not  bound  to  execute  the  lease  offered,  or  any 
lease  containing  such  a  provision ;  but, 

2.  This  did  not  excuse  him  from  executing  a  lease  with 
the  usual  provisions^ 

15.  Although,  since  the  statute,  a  parol  partUiun  of  lands 
is  invalid,  a  Court  of  Equity,  it  seems,  will  enforce  specific 
performance  of  such  agreement,  where  it  has  been  partly 
carried  into  execution.^  Thus,  an  agreement  was  made  be- 
tween two  brothers,  who  had  always  lived  together,  and 
owned  their  property  in  common,  that  one  of  them,  having 
a  family,  should  provide  for  and  take  care  of  the  other,  who 
had  no  family,  and  who  was  subject  to  epileptic  fits,  during 
his  life ;  in  consideration  that  the  former  should  have  all  the 
real  and  personal  estate  of  the  latter.  Held,  the  contract 
should  be  enforced  in  equity .^     (s.  19.) 

16.  G.  and  W.,  brothers,  being  jointly  interested  in  the 
real  estate  of  their  father,  as  tenants  in  common,  G.  agreed 
to  relinquish  his  interest,  in  exchange  for  a  quantity  of 
medicines,  and  the  good-will  of  his  brother's  business  as  a 
physician ;  in  consequence  of  which  agreement,  W.  took 
possession  of  the  real  estate,  made  improvements,  and  after- 
wards sold  the  same  to  T.,  who  also  made  valuable  improve- 
ments. Held,  this  was  sufficient,  in  equity,  to  take  the  case 
out  of  the  statute,  and  T.  was  entitled  to  a  conveyance  of 
G.'s  interest,  and  to  a  perpetual  injunction  against  a  suit 
which  had  been  instituted  by  G.  for  the  recovery  of  the 
premises.^ 

17.  Equity  decrees  the  specific  execution  of  a  parol  agree- 
ment, after  a  part  performance,  and  notwithstanding  the 
express  provisions  of  the  Statute  of  Frauds,  on  the  ground 
of  fraud,  in  refusing  to  perform,  after  performance  by  the 
other  party,  and  to  prevent  the  statute  from  being  an  engine 

'  Eaton  V.  Whitaker,  18  Conn.  222.  Wetmore  v.  White,  2  C.iines,  Cas.  87  ; 

2  Gk)odluiey.  Barnwell,  Rice,  198.  Moreland  v.  Lemasters,  4  Blatkf.  383; 

3  Rhodes  v.  Rhodes,  3  Sandf.  Ch.  Byrd  v.  Odem,  9  Ala.  756  ;  Tenucane 
^79.  V.  Kearney,  1  Freem.  65,  69. 

*  Town  V.  Needham,  3  Paige,  545  ; 


152  LAW  OF  VENDORS  AND  PURCHASERS.      [CH.  TX. 

of  that  fraud,  which  it  was  enacted  to  prevent.'     This  prin- 
ciple is  perhaps  best  ilhistrated,  by  that  somewhat  numerous 
class  of  cases,  involving  a  breach  of  trust,  where  a  legal  title 
is  conveyed  to  one  person,  by  whom  the  consideration  is 
paid,  but  for  the  benefit  of  another,  to  whom  the  nominal 
purchaser  verbally  agrees  to  transfer  the  estate,  upon  being 
reimbursed  the  sum  paid  out.     Thus,  in   such    case,  it   is 
held,  that,  where  a  party  has  paid  money  upon  a  contract 
within  the  statute,  and  a  recovery  of  the  money  will  not  re- 
store him  to  his  former  situation,  he  is  entitled  to  specific 
performance.^     As  where  A.  agreed  to  purchase  land  of  B. 
on  condition  that  a  mortgage  on  the  same  and  other  lands, 
held  by  C,  should  be  discharged  from  the  land,  and  it  was 
thereupon  verbally  agreed  between  A.,  B.  and  C,  that  a  part 
of  the  consideration  should  be  paid  on  the  mortgage  to  C, 
who  should,  at  the  same  time,  execute  a  release  of  that  part 
of  the  premises.     The  purchase  was  accordingly  completed, 
A.  paying  the  money,  of  which  C.  received  the  sum  agreed 
on,  but  C.  excused  himself  from  executing  the  release  at  that 
time,  saying  that  he  would  give  it  at  any  time  when  called 
upon.     Held,  A.,  notwithstanding  the  statute,  was  entitled 
to  a  specific  performance  of  the  agreemerit  to  execute  the  re- 
lease.3     go^  where  lands  of  A.  were  sold  under  execution  to 
B.,  and  B.  sold  them  to  C,  C.  having  agreed  verbally  with 
A.  that  he  would  purchase  them  of  B.,  and  retain  them  until 
the  rents  and  profits  should  pay  the  redemption-money  ;  held, 
the  agreement  was  not  within  the  statute,  being  a  mere  ex- 
tension of  the  time  of  redemption.^     So,  where  A.  obtained 
the  legal  title  to  land,  as  security  for  the  money  advanced 
by  him  to  B.,  the  vendor,  for  C,  the  vendee,  promising  to 
reconvey  the  same  to  C,  on  repayment  of  the  sum  so  ad- 
vanced, with  20  per  cent,  interest,  but  fraudulently  sold  the 
land  to  the  defendant,  who  bought  with  notice ;    held,  the 

1  Maryland,  &c.  v.  Schroeder,  8  Gill         ^  Ibid. 

&  John.  94.  *  Griffin  v.  Coffey,  9  B.  Mon.  452. 

2  Malins  v.  Brown,  4  Comst.  403. 


en.  IX.]  PART-PERFOKMANCE.  153 

contract  was  not  void  under  the  statute,  but  equity  would 
adjudge  the  defendants  trustees  for  the  party  defrauded,  and 
decree  specific  performance,  or  pecuniary  compensation.^ 
So,  A.  and  B.  obtained  the  legal  title  to  land,  for  a  small 
sum  advanced  to  C,  not  being  a  fourth  part  of  the  value  of 
the  land  ;  promising  verbally  to  reconvey  to  C,  on  repay- 
ment of  the  sum  advanced,  with  interest ;  and  afterwards 
fraudulently  reconveyed  the  land  to  a  bona  fide  purchaser. 
Held,  a  demurrer,  insisting  on  the  statute,  should  be  over- 
ruled, the  statute  being  made  to  prevent  fraud,  not  to  protect 
it ;  and  that  A.  and  B.  should  be  holden  as  trustees  of  C,  for 
the  value  of  the  land,  beyond  the  sum  advanced,  and  in- 
terest.^ So,  A.'s  farm  being  about  to  be  sold,  on  a  decree  of 
foreclosure,  for  a  debt  of  |430,  he  applied  to  B.  to  advance 
that  sum,  to  save  the  farm  to  A. ;  and  it  was  agreed  between 
them,  verbally,  that  B.  should  become  the  purchaser,  and 
hold  the  premises  as  security  for  the  advance.  B.  accord- 
ingly became  the  purchaser  for  $680,  received  a  deed  from 
the  master,  and  paid  the  $430  due  the  mortgagee,  and  no 
more.  Held,  the  agreement  was  within  the  statute  ;  that  B. 
was  entitled  to  hold  the  land  for  his  own  benefit,  but  was 
bound  to  pay  to  A.  the  residue  of  the  $680,  after  paying  off 
the  mortgage.'^  [a)  So,  upon  a  bill  for  injunction,  it  appeared 
that  the  defendant  agreed,  by  parol,  with  his  brother,  who 
was  infirm,  and  whose  land  was  about  to  be  sold  on  execu- 
tion, to  purchase  the  land  for  the  brother's  benefit,  and  as  a 
home  for  his  family,  and^p  give  him  the  benefit  of  the  pur- 

1  Jackson  v.  Gray,  9  Geo.  77.  ^  Bander  v.  Snyder,  5  Barb.  6.3. 

2  Cameron  v.  Ward,  8  Geo.  245. 


(a)  But  where  A.  agreed  witli  B.  by  parol,  at  B.'s  request,  to  attend  a 
sale  of  B.'s  farm  under  a  decree  of  foreclosure,  purchase  the  same  in  his  own 
name,  and  give  B.  two  weeks  to  redeem  ;  and  A.  did  so,  «ind  afterwards,  B. 
failing  to  redeem,  A.  sold  the  farm  for  a  greater  sum  than  he  paid  for  it  ; 
Held,  in  an  action  by  B.  against  A.  to  recover  the  surplus,  that  the  agree- 
ment was  void,  being  contrary  to  the  statute.  Lathrop  v.  Hoyt,  7  Barb. 
69. 


154  LAW    OF   VENDORS   AND    PUllCIIASERS.  [ciI.  IX. 

chase,  when  he  should  refund  the  money.  The  defendant 
announced  the  agreement  at  the  sale,  bid  off  the  land  for  a 
nominal  jirice,  and  paid  it.  Tlie  brother  remained  in  pos- 
session till  his  death,  when  the  plaintilT,  his  widow  and  heir, 
occupied  the  land.  The  defendant  then  took  a  deed  from 
the  sheriff,  and  brought  an  action  at  law  to  dispossess  the 
plaintiff.  Held,  the  defendant's  conduct  was  fraudulent,  and 
the  Statute  of  Frauds  was  no  defence  against  the  plaintiff's 
claim  to  have  the  deed  cancelled.'  (a) 

18.  Upon  the  ground  last  stated,  that  the  principle  of  part- 
performance  rests  on  fraud;  the  payment  of  money,  more 
especially  of  only  part  of  the  price,  cannot,  in  general,  be  re- 
garded as  a  sufficient  part-performance.  In  such  case  non- 
performance would  not  operate  a  fraud  upon  the  party,  be- 
cause the  money  may  be  recovered  back.^  [b)     So,  payment 

'  Cox  V.  Cox,  5  Rich.  Eq.  .365.  Phillips,  9  Watts,  85  ;  Parker  r.  Wells, 

2  Hatchery.  Hatclicr,  1  MtMiil.  Eq.  6  Wharton,  15.3;  Hatclier  v.  Hatcher, 

311;   Jackson  v.  Curtwrioht,  5  Munf.  1    M'MuUan,   311;  Smith  v.  Smith,   1 

308;  Sites   v.   Keller,  6  Ham.  (Ohio),  liichardson,  Eq.   130;  Eaton   v.   Whit- 

207  ;  Pollard  r.  Kinner,  lb.  231  ;   Allen  aker,     18     Conn.     222;    Finucanc     v. 

V.  Booker,  2   Stewart.  21:  Meredith?;.  Kearney,   1    Ereem.   Ch.  65;  Hood  v. 

Naish,  3  Stewart,  207  ;  Barickman  v.  Bowman,  lb.  290,  294. 
Kuykendall,  6   Blackf.   21  ;    M'Kee  v. 


(a)  Upon  a  somewhat  similar  ground,  a  party  cannot  avoid  the  effect  of 
part-performance,  by  buying  in  a  prior  title.  Thus,  a  public  survey  was 
held  for  sale  of  an  estate,  an  offer  for  it  accepted,  conveyances  ordered,  and 
possession  delivered.  But,  disputes  arising  about  settling  the  conveyances, 
the  purchaser  obtained  an  assignment  of  a  mortgage  upon  the  estate,  ante- 
dated it,  and  refused  to  go  on  with  the  pu||fcise.  Held,  though  the  agree- 
ment was  parol,  yet  it  was  binding.     Pyke  v7  Williams,  2  Vern.  465. 

(p)  In  an  early  case,  (Lord  Fingal  v.  Ross,  2  Eq.  Cas.  Abr.  46,  pi.  12,) 
Lord  Chancellor  Cowper  remarked,  that  the  clause  of  the  statute  relating 
to  the  sale  of  goods  expressly  provides  that  jxiyment  of  earnest  shall  bind  the 
bargain  ;  while  it  declares  that  no  agreement  concerning  lands  shall  be  good, 
unless  reduced  to  writing.  Ace.  Buckmaster  v.-Harrop,  7  Ves.  341.  Mr. 
Sugden  says,  (1  Sugd.  168,)  the  payment  of  a  small  sum  cannot  be  deemed 
a  part-performance.  The  clicln  are  in  favor  of  a  considerable  siun  being  a 
part-performance,  but  this  construction  is  not  authorized  by  the  statute. 
He  refers  to  the  judgment  of  Sir  Wm.  Grant,  in  Butcher  v.  Butcher,  (9  Ves. 
382,)  as  showing  the  impossibility  of  drawing  any  such  line  of  distinction  be- 


CH.  IX.]  .PART-PERFORMANCE.  155 

of  the  auction  duty  is  not  a  part-performance,  taking  an 
agreement  out  of  the  Statute  of  Frauds,  because  the  rev- 
enue laws  would  thus  be  made  to  operate  beyond  their 
durect  and  immediate  purpose.^  So,  the  defendant  paid 
to  an  auctioneer,  an  agent  for  the  plaintiff,  a  vendor,  ^50 
"  as  a  deposit  and  part-payment  of  X  1,000,"  for  the  pur- 
chase of  hereditaments,  taking  a  receipt ;  "  the  terms  to  be 
expressed  in  an  agreement  to  be  signed  as  soon  as  pre- 
pared." The  defendant  had  previously  approved  of  the  draft 
of  the  contract,  and,  at  the  time  of  taking  the  receipt,  agreed 
to  sign  the  contract  the  next  day;  but  refused  to  do  it,  and 
demanded  back  the  deposit.     Held,  the  Statute  of  Frauds 

1  Buckmaster  v.  Harrop,  7  Ves.  341. 

tween  the  amounts  of  purchase-money  paid.  So,  in  Buckmaster  v.  Harrop, 
7  Ves.  341,  it  is  said,  that  -whether  one  guinea  o^fty  guineas  be  paid,  it  can 
make  no  difference.  Ace.  Cordage  v.  Cole,  1  Saun.  319.  But,  in  an  earlier 
case,  it  Avas  held  that,  though  payment  of  a  substantial  part  of  the  purchase- 
money  will  take  an  agreement  out  of  the  statute,  payment  of  a  small  'part,  as 
five  guineas,  the  purchase-money  being  one  hundred,  will  not  do.  The 
plea  of  the  statute  was  allowed  ;  with  an  intimation  from  the  court,  that, 
under  the  circumstances  of  the  case,  the  bill  would  be  dismissed  with  costs. 
Main  v.  Melbourn,  4  Ves.  720.  A  different  doctrine  from  that  stated  in  the 
text  has  sometimes  prevailed ;  and  several  old  cases  have  been  relied  upon 
to  sustain  it.  Feme  v.  Bullock,  Toth.  206  ;  Clark  v.  Hackwell,  lb.  228 ; 
Vol!  V.  Smith,  3  Cha.  Rep.  16  ;  Moyl  v.  Home,  Toth.  67 ;  Alsop  v.  Patten, 
1  Vern.  472;  Lacon  v.  Mertin,  3  Atk.  1  ;  Dickinson  v.  Adams,  4  Ves.  722. 
But  see  William  v.  Nevill,  Toth.  135  ;  Miller  v.  Blandlst,  lb.  85  ;  Simmons 
V.  Cornehus,  1  Cha.  E,ep.  128;  2  Freem.  128;  1  Freem.  486,  cas.  664  b; 
Seagood  v.  Meale,  Free.  Cha.  560 ;  Coles  v.  Trecothick,  9  Ves.  234.  One 
of  two  joint  lessees  verbally  agreed  to  sell  his  interest  to  the  other,  and  ac- 
cepted a  pair  of  compasses  in  hand  to  bind  the  bargain.  Whether  this  is 
within,  the  Statute  of  Frauds,  Qu.  ?  Alsopp  v.  Fatten,  1  Vern.  472.  A. 
agreed  with  B.  for  the  purchase  of  nine  houses,  mortgaged  to  C,  and  paid 
him  a  guinea  in  earnest.  B.  wrote  a  note  to  C,  desiring  him  to  deliver  up 
the  buildings,  he  having  disposed  of  them,  which  C.  refused,  unless  all  the 
mortgage-money  was  paid,  and  afterwards  purchased  them  himself.  On  a 
bill  brought  by  A.  for  specific  performance,  held,  that  neither  the  earnest 
nor  the  note,  which  was  only  evidence  of  assent,  but  did  not  ascertain  the 
terms  of  the  agreement,  was  sufficient  to  take  it  out  of  the  Statute  of 
Frauds.     Seagood  v.  Meale,  Free.  Cha.  560. 


156         LAW  OF  VENDORS  AND  PURCHASERS.      [CH.  IX. 

was  a  good  defence  to  a  bill  for  specific  performance.'  So 
the  purchaser's  having  dejiosited  part  of  Ihe  purchase-money 
with  her  agent,  to  pay  the  vendor  as  soon  as  he  should  execute 
the  deeds,  and  the  agent's  informing  the  vendor  of  it,  are  not 
such  a  part-performance  as  takes  the  case  out  of  the  statute.^ 

19.  But,  where  the  consideration  of  a  verbal  sale  of  land 
consists  of  services  to  be  rendered,  which  are  of  such  a  pecu- 
liar character,  that  it  is  impossible  to  estimate  their  value  to 
the  vendor  by  a  pecuniary  standard,  and  the  vendor  did  not 
intend  so  to  measure  them ;  the  performance  of  the  services 
will  entitle  the  vendee  to  a  specific  performance.  Thus,  an 
agreement  was  made  between  two  brothers,  who  had  always 
lived  together,  and  owned  their  property  in  common,  by 
which  the  one,  having  a  family,  agreed  to  provide  for  and 
take  care  of  the  other,  who  had  none,  and  who  was  subject 
to  epileptic  fits,  durftg  his  life,  in  consideration  that  the 
former  should  have  all  the  real  and  personal  estate  of  the 
latter.  Held,  after  performance  of  the  services,  the  contract 
should  be  enforced.-'^     (s.  15.) 

20.  The  principles  above  stated,  with  reference  to  part- 
performance,  seem  to  be  well-established  by  the  weight  of 
English  and  American  authorities.  There  are,  however,  some 
qualifications  and  exceptions,  which  equally  require  to  be 
noticed.  Thus,  as  has  been  already  stated,  (§  8,)  acts  of 
part-performance  of  a  parol  agreement  will  not  take  it  out 
of  the  statute,  unless  they  are  solely  applicable  to  the  agree- 
ment, [a)  Upon  this  ground,  repairs  made  by  a  tenant 
under  his  old  lease,  upon  the  expectation  of  getting  a  new 
one,  form  no  consideration  for  a  promise  to  give  a  new 
lease*     So,  a  mere  continuance  in  possession,  by  a  tenant, 

1  Wood  V.  Midgeley,  27  Eng.  Law  &  '^  Rhodes  v.  Rhodes,  3  Sandford,  279. 
Eq.  206.  *  Byrne  w.  Romaine,  2  Edw.  445,  446. 

2  Givens  v.  Calder,  2  Desaus.  171.         See  Lacon  v.  Mertins,  3  Atk.  1. 

(a)  Part-performance  must  be  such,  as  to  make  the  party  seeking  to  en- 
force an  execution  a  wrongdoer,  by  reason  of  his  acts,  and  a  complete  per- 
formance a  protection  against  any  liability  for  such  acts.  Ham  v.  Goodrich, 
(N.  H.)  Law  Rep.  Nov.  1856,  p.  390. 


CII.  IX.]  PART-PERFORMANCE.  l57 

after  his  purchase,  is  not  sufficient  to  take  the  case  out  of 
the  statute.'  So  where,  upon  the  faith  of  a  verbal  promise 
of  renewal,  a  tenant  rebuilt  a  party  wall ;  the  agreement  was 
held  to  be  within  the  statute  ;  the  act  being  an  equivocal 
one,  which  would  have  been  done  equally  without  any  agree- 
ment ;  and  moreover,  the  landlord  being  liable  to  an  action 
to  recover  back  the  cost,  if  it  was  to  be  borne  by  him.^  So, 
the  vendee's  renting  a  part  of  the  land,  as  agent  of  the  ven- 
dor, will  not  entitle  the  vendor  to  specific  performance,  as  it 
does  not  purport  to  be  in  pursuance  and  execution  of  the 
agreement.^  So,  to  constitute  a  valid  parol  sale  under  the 
statute,  the  possession  must  be  exclusive  of  the  vendor,  and 
the  boundaries  distinctly  ascertained.  Thus,  A.  entered,  under 
a  parol  agreement  with  B.  to  receive  one  hundred  acres,  in- 
cluding tlfe  mansion-house,  on  one  side  of  a  larger  tracf ; 
lived  with  B.,  performed  the  consideration,  and  farmed  the 
land  in  the  manner  it  had  been  previously  farmed,  or  with 
his  own  and  B.'s  cattle ;  having  also  an  agreement  to  farm 
the  whole  of  the  larger  tract  for  one  year,  for  payment  of 
taxes,  and  making  fences.     Held,  within  the  statute.* 

21.  Promise  by  a  father  to  one  of  his  sons,  that,  if  the 
latter  would  continue  with  him,  he  would  leave  him  the 
farm  at  his  death.  The  son  brings  a  bill  for  specific  execu- 
tion against  the  heirs  at  law  of  the  father,  on  the  ground  of 
performance  by  the  son.  Bill  dismissed.^  So,  in  case  of  an 
agreement  between  father  and  son,  that  if  the  son,  with  his 
family,  would  come  and  live  with  the  father,  and  take  care 
of  him  and  his  farm  during  his  life,  he  would  give  the  son  his 
homestead  farm  ;  the  father  is  not  bound  to  give  up  posses- 
sion during  his  life,  such  surrender  not  being  necessary  to  a 
performance  of  the  conditions.  The  agreement  merely  binds 
the  father  to  give  the  son  a  title  either  by  devise,  or  by  a 

1  Johnston  v.  Glancy,  4  Blackf.  94,  1  ;  O'Reilly  v.  Thompson,  2  Cox, 
99;   Hood   v.    Bowman,    1    Freeman,     271. 

290-294;   Wills   v.    Stradling,  3  Ves.  ^  Anderson  u.  Chick,  Bai.  Eq.  118 

378  ;  Savage  v.  Carroll,  1  B.  &  B.  265.  *  Frve  v.  Shepler,  7  Barr,  91. 

2  Frame  v.  Dawson,  14  Ves.  386.  ^  Carlisle  v.  Fleming,  1  Harr,  421, 
See  Lyndsay  v.  Lynch,  2  Scho.  &  Lef.  430. 

14 


!.'>*         LAW  OF  VENDORS  AND  PURCHASERS.      (OH.  IX. 

conveyance  to  take  effect  at  his  death.  Hence,  w^here  a  bill, 
brou'ifht  by  the  son  to  enforce  the  agreement,  set  it  forth  as 
above  stated ;  held,  the  plaintiff's  possession,  during  the 
father's  life,  was  not  a  part-performance. 

22.  Verbal  agreement,  that  A.  will  convey  a  tract  of  land, 
and  pay  a  sum  of  money,  to  B.,  in  consideration  that  B.  shall 
make  a  deed,  confirming  the  sale  of  another  tract  to  C. 
Held,  the  execution  of  the  deed  of  confirmation  was  not  such 
a  part-performance,  as  made  the  contract  binding  upon  A.^ 

23.  A  parol  sale,  upon  which  money  has  been  paid,  and 
possession  delivered,  is  not  good  against  a  bond  fide  pur- 
chaser, without  clear  evidence  of  notice  to  him,  either  actual 
or  legal.  Legal  notice  exists,  only  where  there  is  a  violent 
presumption  of  actual  notice.  Undisturbed  possession  has 
ll^nerally  been  considered  legal  notice  ;  but  it  must  be  clear 
and  unequivocal.  Thus,  A.  bought  by  parol  from  B.  a  corner 
of  B.'s  tract,  paid  for  it,  was  put  into  possession,  and  had 
buildings  erected,  but  there  was  no  survey  of  the  part,  or 
other  admeasurement.  On  B.'s  part  there  were  a  forge, 
dwelling-house,  grist  and  saw  mill,  and  buildings  for  the 
workmen,  which,  with  A.'s  buildings,  might  strike  the  eye  as 
one  establishment.  Held,  the  possession  of  A.  was  not  legal 
notice  of  his  title,  to  a  purchaser  at  sheriff's  sale,  under  a 
judgment  against  B. ;  particularly  if  A.  gave  no  actual  notice 
of  his  title,  when  he  probably  knew  of  the  judgment,  execu- 
tion and  sale.2 

24.  It  requires  to  be  further  stated,  that,  although  the  gen- 
eral doctrine  as  to  part-performance  has  been  for  the  most 
part  recognized,  with  other  principles  of  the  English  law,  in 
the  United  States ;  yet  it  has  not  been  universally  adopted. 
Thus,  in  Massachusetts,  where  there  is  no  Court  with  full 
equity  powers,  there  has  been  a  series  of  cases,  all  tending 
to  the  conclusion,  which  seems  now  finally  established,  that 
part-performance  does  not  take  a  parol  contract  relating  to 


1  Chambers  v.  Lecompte,  9  Missouri,        ^  Billington  v.  Welsh,  5  Binn.  131. 
566. 


CH.  IX.]  PART-PERFORMANCE.  159 

lands  out  of  the  Statute  of  Frauds,  Any  earlier  decisions, 
which  may  have  incidentally  recognized  the  contrary  doc- 
trine, may  be  considered  as  now  overruled.  Thus  it  is  held, 
that,  although  a  defendant  in  equity  may  rely  upon  a  verbal 
agreement,  for  the  purpose  of  showing  that  it  would  be  in- 
equitable to  enforce  specific  performance  of  a  written  one ; 
the  Court  have  no  power  to  decree  specific  performance  of 
a  contract,  unless  every  part  of  it  has  been  reduced  to  writ- 
ing.' So,  in  a  case  of  assumpsit,  to  recover  money  alleged 
to  have  been  paid  on  a  consideration  which  has  failed.  The 
money  was. paid,  on  a  parol  agreement  to  purchase  of  the 
defendant  a  certain  house  and  estate,  which  were  to  be  con- 
veyed to  the  plaintiff  free  of  incumbrance,  the  defendant 
undertaking  to  discharge  a  mortgage  on  the  estate,  which 
was  subsequently  done,  but,  before  the  estate  was  conveyed 
to  the  plaintiff,  the  house  was  consumed  by  fire.  It  was 
held,  that  the  contract  was  void  by  the  Statute  of  Frauds, 
that  the  payment  of  the  money  did  not  take  the  case  out 
of  the  statute,  that  the  loss  must  fall  upon  the  defendant,  no 
actual  conveyance  having  been  made,  and  neither  party  in 
fault,  and  that  the  plaintiff  was  entitled  to  recover.^  And, 
in  a  very  late  case,  where  the  general  question  was  more 
distinctly  presented  than  in  any  preceding  one,3it  is  expressly 
decided,  that  part-performance  does  not,  in  Massachusetts, 
take  a  case  out  of  the  statute.  Bigelow,  J.,  says :  *  "  This 
Court  has  no  power  to  enforce  in  equity  the  specific  perform- 
ance of  any  but  written  contracts.  The  ground  on  which 
Courts  having  full  chancery  powers  have  interfered  to  enforce 
parol  contracts  concerning  the  sale  of  lands  which  have  been 
partly  performed,  has  been  to  furnish  remedies  against  fraud, 
and  not  because  the  contracts,  as  such,  were  binding  on  the 
parties.  Such  cases  are  not  within  the  equity  power  of  this 
Court."     The   same  point  h#fe    been   settled,  upon   similar 


'  Brooks  V.  Wheelock,  1 1  Pick.  4.38.  ^  Jacobs  v.  The  Peterborough,  &c.,  8 

2  Thompson  v.  Gould,  20  Pick.  134.  Cush.  22.3. 

*  Ibid.  225. 


160  LAW    OP   VENDORS    AND    PURCnASERS.  [CH.  IX. 

grounds,  in  Maine.'  So,  it  is  said  to  be  the  settled  doctrine 
in  Mississippi,  that  part-performance  will  not  take  a  parol 
sale  of  lands  out  of  the  Statute  of  Frauds,  and  that  no 
exceptions  of  that  character  will  be  ingrafted  on  the  statute.^ 
So  it  is  held  in  Tennessee,  that  a  Court  of  Equity  has  no 
power  to  relieve  against  the  provisions  of  a  statute  in  any 
case  ;  that  parol  proof  is  inadmissible,  to  establish  a  contract 
required  by  statute  to  be  in  writing;  or  to  show  part-per- 
formance, from  Avhich  the  contract  may  be  inferred.  The 
rule  is  adopted,  without  qualification,  that  to  make  a  con- 
tract for  the  sale  of  land  valid,  it  must  be  in  jkVriting,  and 
signed  by  the  party  to  be  charged  therewith.^  In  New  York 
it  was  early  held,  that  a  contract  cannot  rest  partly  in  writ- 
ing and  partly  in  parol ;  that,  where  a  part-performance  is 
set  up,  the  party  cannot  resort  to  parol  evidence  in  aid  of 
the  written  agreement ;  but  the  terms  must  distinctly  appear, 
or  be  made  out  to  the  satisfaction  of  the  Court."^  So,  in 
New  York,  it  is  held,  that  the  rule  of  the  Court  of  Chancery, 
by  which  parol  contracts  for  the  sale  of  real  estate  are  taken 
out  of  the  Statute  of  Frauds  by  a  part-performance,  ought 
not  to  be  extended  to  new  cases,  which  do  not  come  clearly 
within  the  equitable  principles  of  the  previous  decisions  on 
that  subject.'^  So  in  Pennsylvania  it  was  early  held,  that 
possession  alone  will  not  take  a  case  out  of  the  act  against 
frauds,  &c. ;  though  it  is  a  strong  circumstance  connected 
with  others.^  Thus,  possession  begun  before  a  parol  agree- 
ment of  lease  for  seven  years,  and  continued  afterwards,  is 
of  too  doubtful  a  nature  to  be  considered  as  part-perform- 
ance.'^ And,  in  a  much  later  case,  it  has  been  decided,  that 
the  delivery  of  possession  of  part  of  the  property,  in  compli- 
ance with  a  parol  contract  for  the  sale  of  land,  is  not  such 

'  Bubier   v.    Bubier,   24   Maine,  42  ^      ^  German  v.   Machin,  6  Paige,  289, 
Wilton  V.  Harwood,  23  Maine,  131.       •  293. 

2  Beaman  v.  Buck,  9  Sm.  &  M.  207  ;         ^  Bassler  v.  Nieslar,  2  S.  &  R.  355. 
Box  V.  Stanford,  13  Sm.  &  M.  93.  "^  Jones  v.  Peterinan,  3  Serg.  &  Kawle, 

3  Patten  V.  M'Clure,  M.  &  Y.  333.         543.      So     in    Indiana  ;   Johnston    v. 
*  Parkhurst    v.    Van    Cortlandt,    1     Glancy,  4  Blackf.  94 ;   and  in  Hatcher 

John.  Ch.  274.  v.  Hatcher,  1  M'Mul.  Eq.  311. 


CH.  IX.]  PART-PERFORMANCE.  161 

an  execution  of  it,  as  will  take  it  out  of  the  Statute  of  Frauds 
and  Perjuries.'  But  the  doctrines  of  the  English  Chancellors 
concerning  part-performance  have  finally  been  adopted  as  the 
law  of  Pennsylvania,  under  the  Act  of  Assembly  against 
frauds  and  perjuries,  notwithstanding  the  omission  in  the 
latter  of  the  4th  section  of  the  English  statute.^  And  the 
rule  elsewhere  adopted  seems  to  be  finally  established,  that, 
to  take  a  case  out  of  the  statute,  there  must  be  possession, 
and  such  part-performance,  as  cannot  be  compensated  in 
damages;^  and  also  exclusive  possession.*  Thus,  the  plain- 
tiffs claimed  under  the  will  of  their  grandfather ;  the  defend- 
ants under  a  parol  gift  or  contract  between  their  father  and 
grandfather.  Held,  under  the  Statute  of  Frauds,  the  defend- 
ants had  the  burden  of  proof,  that  the  contract  was  made ; 
the  land  clearly  designated ;  open,  notorious,  and  exclusive 
possession  taken  and  maintained  under  and  in  pursuance  of 
the  contract ;  and  that  they  had  made  improvements  which 
did  not  admit  of  pecuniary  compensation.^  So,  in  North 
Carolina,  part-performance,  such  as  payment  of  the  whole 
purchase-money,  and  delivery  of  possession  to  the  vendee, 
will  not  dispense  with  a  writing,  if  the  statute  be  insisted 
on,  nor  admit  parol  proof  of  a  contract,  different  from  that 
stated  in  the  answer.^  (a) 

25.  It  has  been  seen,  (s.  17,)  that  part-performance  is  held 
to  take  a  parol  contract  out  of  the  statute,  on  the  ground 
of  f 7' aud0  in  the  absence  of  which,  actual  or  constructive, 
equity  will  not  interfere  to  enforce  the  contract,  though  in 
part  executed.  It  is  further  held,  that  specific  execution  of 
a  parol  contract  for  land  will  not  be  decreed,  where  its  opera- 
tion would   be    harsh    on    any   person   concerned.     But,  if 

'  Allen's  Estate,  1  Watts  &  S.  383,        *  Blakeslee    v.  Blakeslee,  22  Penn. 
385.  237. 

2  Pugh  V.  Good,  3  Watts   &  Serg.         ^  Moore  v.  Small,  19  Penn.  461. 

56.  6  Allen  v.  Chambers,  4  Ired.  Eq.  125  ; 

3  Moore  v.  Small,  19  Penn  461.  Ellis  v.  Ellis,  1  Dev.  Eq.  180,  341. 

(a)  Whether  it  would  be  otherwise,  if  the  contract  partly  performed  were 
admitted  by  the  answer.     Qu.?     Ellis  v.  Ellis,  1  Dev.  Eq.  341. 
14* 


162  LAW    OF   VENDORS   AND   PURCIIASERS.  [cn.  IX. 

specific  execution  is  refused,  for  any  cause,  the  Court  will 
decree  compensation  to  a  party,  who  may  have  expended  his 
money  on  the  property  of  another,  on  the  faith  of  such  con- 
tract.^ Thus,  the  defendant  agreed  to  assign  a  term  of  years 
in  his  house  and  certain  goods,  for  200  guineas,  paying  one 
in  hand  as  earnest,  and,  three  days  after,  nineteen  more ;  and 
it  was  also  agreed  that  the  bargain  should  be  put  in  writing 
by  a  certain  time.  Bill  for  specific  performance.  Plea,  the 
Statute  of  Frauds,  and  that  the  money  was  only  paid  for 
the  lease,  but  confessing  the  receipt  of  the  twenty  guineas, 
and  offering  to  repay  them.  The  plea  was  overruled,  but  it 
was  held  to  be  clear  that  the  defendant  ought  to  repay  the 
money.2  go^  ^j^g  defendant  agreed  to  give  the  plaintiff"  a 
lease,  rendering  rent,  the  plaintiff"  paying  £150  fine.  The 
plaintiff"  paid  .£100,  but  the  defendant  refused  to  perform  the 
agreement.  Upon  a  bill  filed  for  specific  performance,  held, 
the  agreement  was  within  the  statute,  but  the  £100  was 
decreed  to  be  refunded.^  So,  in  New  York,  where,  as  has 
been  seen,  the  general  doctrine  of  part-performance  has  not 
been  fully  adopted,  if  possession  has  been  taken,  and  lasting 
improvements  made,  under  an  imperfect  agreement ;  though 
the  Court  will  not  grant  relief,  on  the  ground  of  part- 
performance,  yet  the  bill  will  be  retained,  for  the  purpose  of 
a  reasonable  compensation  for  such  improvements."^  Thus, 
commissioners,  under  an  act  of  the  Legislature,  were  held 
to  have  no  right  to  use  the  lands  of  the  plaintiff"^r  to  re- 
move or  destroy  his  property,  without  a  valid  and  legal 
contract  with  him  for  that  purpose,  or  until  compensation 
had  been  made  and  tendered  to  him  according  to  the  act. 
And  though  a  bill  filed  against  the  commissioners,  to  enforce 
a  parol  contract  for  compensation,  could  not  be  sustained,  as 
being  within  the  statute  ;  yet  the  Court  retained  the  bill, 
and  awarded  an  issue  of  quantum  damnijicatus,  to  assess  the 

1  Anthony  v.  Leftwich,  3  Rand.  238,         ^  Lord  Fingal  v.  Ross,  2  Eq.  Cas. 
246.  Abr.  46,  pi.  12. 

■■2  Leak  v.  Morrice,  2  Cli.  Cas.  135.  *  Parkhurst    v.    Van    Cortlaudt,    1 

John.  Ch.  274. 


CH.  IX.]  PART-PERFORMANCE.  163 

damages,  as  the  plaintiff  had  no  remedy,  or  at  best  a  doubt- 
ful and  inadequate  one,  at  law.^  So  it  is  held  in  North 
Carolina,  that,  although  payment  of  the  purchase-money, 
taking  possession,  and  making  improvements,  will  not  entitle 
the  vendee  to  specific  performance ;  yet  he  has  in  equity  a 
right  to  an  account  of  the  purchase-money  advance^  and 
the  value  of  his  improvements,  deducting  therefrom  the  an- 
nual value  during  his  possession.^  But  a  later  case  decides, 
that,  although  in  case  of  part-performance,  if  the  defendant 
admits  the  contract,  as  stated  by  the  plaintiff,  and  the  part- 
performance,  but  relies  on  the  statute,  the  Court  will  order 
an  account,  and  decree  compensation  ;  if  the  contract  is 
denied,  the  Court  can  grant  no  relief,  because  it  can  go  into 
no  proof  of  a  contract,  variant  from  that  stated  in  the 
answer.^ 

'  Phillips  V.  Thompson,  1  John.  Ch.         ^  Dunn  v.  Moore,  3  Ircd.  Eq.   364. 
'  131,  149.  Allen  v.  Chambers,  4  Ired.  Eq.  130. 

2  Albea  v.  Griffin,  2  Dev.  &  Batt.  Eq. 
9  ;  Baker  v.  Carson,  1  lb.  381. 


164  LAW    OF   VENDORS    AND    PURCHASERS.  [CH.  X. 


•  CHAPTER   X. 

CONSTRUCTION  OF  CONTRACTS. 

1.  General  rules.  I       13.  Separate  instruments. 

6.  Certainty.  | 

1.  Having  considered  the  elements  and  requisites  of  a 
contract  for  the  sale  and  purchase  of  lands,  we  now  proceed 
briefly  to  speak  of  the  constniction  of  such  contract.  In  this 
connection,  the  agreement  itself  is  assumed  to  be,  as  the 
Statute  of  Frauds  requires,  in  writing,  and  the  present  in-  • 
quiry  therefore  involves  the  important  subject  of  the  admis- 
sibility of  parol  evidence,  in  reference  to  such  written  agree- 
ment. 

2.  It  is  a  general  rule,  that  words  shall  be  so  construed  as 
to  have  some  meaning,  rather  than  rejected.  Thus,  where  a 
vendor  proposes  a  price,  clear  of  all  expenses,  the  agreement 
is  construed  to  mean  that  the  purchaser  shall  bear  the  ex- 
pense of  making  out  the  title ;  the  law  imposing  on  him  the 
expense  of  the  conveyance.' 

3.  The  meaning  of  words  may  be  determined  by  the 
nature  of  the  subject  to  which  they  relate.  Thus,  in  case  of 
a  purchase  of  a  rectory  for  "  the  use  of  the  parishioners  and 
inhabitants,^^  the  Court  suggested  various  senses  of  the  term 
"inhabitant,"  with  reference  to  the  nature  of  the  subject.^ 

4.  A.  contracted  to  sell  and  plant  a  quantity  of  trees  on 
B.'s  land ;  and  also,  that  he  would  keep  in  order  the  trees 
aforesaid  for  two  years,  and  replace  such  as  should  die  during 
that  period  "except  from  injury  by  sheep,  game,  or  cattle." 

1  Stratford  v.  Bosworth,  2  Vcs.  &  ^  Attorney-General  v.  Foster,  10  Ves. 
Bea.  341.  335. 


CH.  X.]  CONSTRUCTION  OF  CONTRACTS.  165 

In  an  action  to  recover  the  price,  held,  the  words  "  keep  in 
order"  meant,  not  to  prune  only,  but  to  weed  and  clear  the 
ground,  (a) 

5.  A  stipulation  was  made,  in  articles  before  marriage, 
that  the  intended  settlement,  which  related  to  estates  in 
Ireland,  should  contain  all  the  covenants,  provisions,  and 
conditions,  usually  contained  in  marriage  settlements  made 
in  England.  Held,  to  authorize  the  insertion  of  a  power  of 
sale  and  exchange,  under  which  lands  in  England  might  be 
taken  in  exchange  for  lands  in  Ireland.  A  reference  was 
made  to  the  master,  to  inquire  whether  certain  proposed 
powers  of  leasing  were  usual  in  that  part  of  Ireland  where 
the  estates  were  situated,  and  whether  any  circumstances 
connected  with  the  property  rendered  such  powers  expedient, 
and  to  the  interest  of  all  parties,  with  liberty  to  state  special 
circumstances.^ 

6.  With  regard  to  the  construction  of  contracts  for  the 
sale  of  land,  the  same  reasonable  certainty  (b)  is  required 
to  render  them  valid,  as  in  the  case  of  other  written  agree- 
ments. And  where  a  party  has  failed  to  prove  the  terms 
of  the  agreement  relied  on,  equity  will  not  assist  him, 
by  directing  an  issue  to  ascertain  the  terms.  A  plaintiff  is 
bound  to  state  in  his  bill  the  agreement  relied  on,  and  to 
prove  it  as  stated.^ 

7.  An  agreement  to  sell  land,  generally,  means  the  whole 
interest  of  the  vendor.^ 

8.  An  agreement  in  writing,  for  the  sale  of  a  house,  did 
not,  by  description,  ascertain  the  particular  house,  but  re- 
ferred to  the  deeds,  as  in  possession  of  a  person  named. 

'  Bedford  v.  Abecorn,  1  Myl.  &  Cra.  ^  gavage  v.  Carroll,  2  Ball.  &  Beatt. 
312.  444. 

3  Bower  v.  Cooper,  2  Hare,  408. 

(a)  Also,  that  evidence  of  non-performance  by  A.  of  any  part  of  the  con- 
tract on  his  part  was  admissible  in  reduction  of  damages.  Allen  v.  Cam- 
eron, 1  Crompt.  &  Mees.  832. 

(b)  Whether  the  purchase  of  a  good  will  falls  within  this  requisition,  see 
Coslake  v.  Till,  1  Russ.  376. 


166  LAW    OP   VENDORS    AND    PURCnASERS.  [ciI,  X. 

Held,  tlic  agreement  was  sufficiently  certain,  if  it  could  be 
ascertiiincd  by  an  inquiry  before  the  master,  that  these  deeds 
referred  to  the  house.' 

9.  In  a  contract  for  the  conveyance  of  land,  the  land  was 
described  as  "  lying  on  the  southwest  side  of  Black  River, 
adjoining  the  lands  of  William  liaflland  and  Martial." 
Held,  the  description  was  sufficiently  certain  to  entitle  the 
vendee  to  a  specific  performance.^  So,  where  a  contract  of 
sale  described  the  land,  as  lying  in  a  certain  town,  county 
and  State,  and  the  240  acres  owned  by  the  vendor  ;  held,  suf- 
ficiently certain.*^  So,  the  certainty  of  a  contract  may  in  part 
depend  upon  some  subsequent  act  of  the  vendee.  Thus,  in 
case  of  a  bond,  conditioned  to  convey  a  certain  quantity  of 
land  in  one,  two,  or  three  surveys,  at  the  election  of  the 
obligee  ;  held,  the  selection  must  be  made,  and  the  land  sur- 
veyed, before  any  obligation  arose  to  convey.  There  being 
a  latent  ambiguity  in  the  description,  which  could  be  ex- 
plained only  by  an  actual  survey  ;  held,  the  contract  could 
not  be  rescinded  before  such  survey,  showing  whether  the 
bond  could  be  complied  with.^ 

10.  But  where  A.  and  B.  agreed  in  writing,  that  A.  had 
sold  to  B.  "  all  that  part  of  a  tract  of  land  called  C,  lying 
adjoining  the  turnpike  road  near  where  D.  now  lives  at, 
&c. ;  "  held,  this  agreement  contained  no  sufficient  descrip- 
tion of  the  land,  the  bounds  and  quantity  being  both  uncer- 
tain, and  could  not  be  enforced  any  further  than  as  admitted 
by  B.''  .  So,  a  contract  for  a  lease  of  "  coals,  &c.,"  or  "  min- 
erals," is  too  ambiguous  to  be  carried  out  by  the  court.^ 
So,  upon  the  ambiguous  terras  of  a  contract,  as  including  or 
excluding  the  timber,  the  purchaser's  bill  for  specific  perform- 
ance was  dismissed ;  and,  having  throughout  insisted  upon 
his  construction,  held,  he  could  not  compel  the  vendor  to 
convey,  upon  the  terms  he  originally  offered." 

1  Owen  V.  Thomas,  3  My.  &  K.  353.         ^  Dorsey  v.  Wayman,  6  Gill,  59. 

2  Kitchen  v.  Herring,  7  Ired.  Eq.  "  Price  v.  Griffith,  8  Eng.  L.  &  Eq. 
190.  R.  72. 

3  Richards  y.  Edick,  17  Barb.  260.  '  Clowes   v.    Higginson,    1    Ves.    & 
*  Purcell  V.  M'Glearv,  10  Gratt.  246.       Bea.  526. 


CH.  X.]  CONSTRUCTION  OF  CONTRACTS.  167 

11.  Lessees  of  a'  coal  mine  covenanted  with  the  lessors, 
that  they  would,  by  a  certain  time,  get  all  the  demised  coal 
in  the  township  of  B.,  "  not  deeper  than  or  below  the  level 
of"  the  bottom  of  the  A.  mine,  under  a  c^ain  point  at  the 
surface.  In  an  action  upon  the  covenant,  a  question  arose, 
whether  "  level"  was  used  in  the  ordinary  sense  of  a  horizontal 
plane,  or  in  a  peculiar  sense,  having  reference  to  the  drainage. 
Held,  that  evidence  was  admissible,  to  show  the  understand- 
ing of  the  term  "  level,"  used  as  in  the  above  lease  among 
coal  miners.  It  was  referred  to  an  arbitrator  to  receive  such 
evidence  and  state  a  case  for  the  opinion  of  the  court.  He 
found,  that  the  mine  was  situate  within  an  extensive  coal- 
mining district  in  the  county  of  Lancaster,  and  that,  "  ac- 
cording to  the  custom  and  understanding  of  miners  through- 
out that  district,"  the  terms  "  level,"  "  deeper  than,"  and 
"  below,"  signified,  &c. ;  stating  the  construction  of  the 
terms,  which  was  in  favor  of  the  defendant.  It  did  not  ap- 
pear, as  to  some  of  the  parties  to  the  lease,  that  they  re- 
sided within  the  district,  and  they  were  named,  in  the  lease, 
as  of  other  places.  Held,  the  existence  of  the  custom  in  this 
district  did  not  raise  a  conclusion  of  law,  that  the  parties 
used  the  terms  accordingly,  but  was  only  evidence  for  a  jury ; 
and  that  the  court  could  not  give  judgment  for  the  defend- 
ant ;  although,  it  seems,  they  might  have  done  so,  if  the  arbi- 
trator had  found  the  custom  of  miners  without  limitation.^ 

12.  The  defendant  agreed  to  sell  the  plaintiffs,  a  railroad 
corporation,  "  the  land  they  might  take  on  the  northerly  side 
of  the  M.  turnpike,  adjoining  T.'s  land,  at  twenty  cents  per 
square  foot,  for  each  and  every  foot  so  taken  by  said  com- 
pany." Bill  for  specific  performance.  Held,  not  a  sale  of  the 
land  generally,  or  of  such  part  of  it  as  the  plaintiffs  might 
elect,  or  of  such  as  they  should  accept  the  offer  of ;  but  of 
such  part  as  the  plaintiffs  might  take  in  the  exercise  of  the 
authority  conferred  on  them  by  law.^ 

1  Clavton  V.  Gregson,  5  Adol.  &  Ell.        ^  Boston  &  Maiue  Railroad  v.  Bab- 
302.       "  .  '  cock,  3  Cush.  228. 


1G8  LAW   OF   VENDORS   AND   PURCHASERS.  [ciI.  X. 

13.  It  has  already  been  seen  (ch.  2,)  that  a  contract  may 
consist  of  separate  writings,  as  well  as  a  single  instrument, 
provided  they  mutually  refer  to  each  other.  Of  course,  a 
contract  thus  dBde  is  also  to  be  construed  like  one  entire 
agreement.  Thus,  it  was  agreed,  that  for  a  sum  to  be  fixed 
thereafter,  a  lessee  would  assign  his  lease,  and  the  furniture 
and  good-will  of  the  property,  reserving  a  certain  part.  Sub- 
sequently, on  receipt  of  this  sum,  a  bill  of  sale  was  made  of 
all  the  above  interests,  without  reservation.  Held,  the  two 
instruments  were  to  be  construed  together,  and  the  reserva- 
tion still  took  effect.'  So,  equity  will  enforce  a  written 
agreement  to  convey,  though  accompanied  by  another  writ- 
ten agreement,  that  the  party  will  forfeit  a  certain  sum,  if  he 
does  not  convey ;  the  plaintiff  showing  performance  of  the 
terms  on  which  such  conveyance  was  to  be  made.^ 

14.  A  vendor,  A.,  wrote  thus  to  his  own  solicitor,  "  B.  has 
agreed  to  purchase  my  estate  in  this  county  for  X  60,000,  in- 
cluding the  timber.  I  have  shown  this  to  B.,  and  given  him 
a  copy,  not  signed  as  a  memorandum."  A  month  after- 
wards, in  the  course  of  correspondence  concerning  the  terms 
of  a  formal  agi-eement,  B.  wrote  to  the  solicitor,  "  I  beg  to 
know  when  you  will  forward  the  agreement  to  be  entered  into 
with  A.,  relative  to  the  purchase  I  have  concluded  with  him 
for  his  estate  in  this  county."  Held,  the  letters,  agreement, 
and  memorandum  constituted  a  contract,  binding  on  both 
parties,  and  vested  a  devisable  interest  in  B.^ 

15.  But  where  terms  of  sale  are  stated  in  connection  with 
one  mode  of  transfer,  and  the  sale  afterwards  takes  place  in 
another  mode,  such  terms  will  not  bind  the  purchaser.  A. 
and  his  agent  attended  an  auction  for  the  sale  of  a  house, 
and  had  notice  of  certain  conditions  there  exhibited.  A., 
afterwards,  through  his  agent,  and  the  agent  of  the  vendor, 
purchased  the  house.     Held,  he  was  not  bound  by  the  par- 


1  Beman  v.  Green,  I  Duer,  382.  ^  Morgan  v.  Holford,  17  Eng.  L.  & 

2  Doolcy  V.  Watson,  1  Gray,  414.  Eq.  174. 


CH.  X.]  CONSTRUCTION  OF  CONTRACTS.  169 

ticulars.^  So,  in  order  to  connect  different  instruments  as 
constituent  parts  of  one  contract,  the  parties  must  be  the 
same.  Thus,  A.,  by  an  instrument  under  his  hand  and  seal, 
acknowledged  the  receipt  of  $100  from  B.,  \vhich  he  prom- 
ised to  pay  out  in  the  purchase  of  land  in  Michigan  or 
Illinois,  and  to  procure  deeds  of  the  same  ;  pay  three  and  a 
half  per  cent,  interest,  and  act  for  the  mutual  interest  of  both 
parties ;  and  C,  on  the  same  day,  and  on  the  same  piece  of 
paper,  by  an  instrument  under  his  hand  and  seal,  covenanted 
and  guaranteed  the  fulfilment  by  A.  of  the  said  agreement. 
Held,  a  joint  action  against  .^Aand  C,  for  breach  of  the 
original  agreement,  could  not  beiRlstained.  Held,  also,  that 
the  original  agreement,  and  the  guarantee,  were  different 
contracts,  and  could  not  be  united  in  the  same  action  at 
common  law,  nor  under  §  120  of  the  code  of  procedure.^ 

16.  In  some  cases,  a  writing  may  undoubtedly  be  con- 
trolled or  explained,  as  well  by  a  map  or  plan,  with  refer- 
ence to  which  the  contract  is  made,  as  by  another  accom- 
panying instrument.  But  it  is  held,-^  that  the  mere  exhibition 
of  the  plan  of  a  new  street,  at  the  time  of  the  sale  of  a  piece 
of  ground,  on  which  to  build  a  house  in  the  line  of  the  in- 
tended street,  does  not  of  itself  amount  to  a  warranty  or 
engagement,  that  all  which  is  exhibited  on  the  plan  shall  be 
done,  more  especially  where  the  purchaser  has  a  distinct 
contract  put  into  the  solemn  form  of  a  chartfer  containing  no 
such  stipulation.  Thus,  where  the  governors  of  Heriot's 
hospital,  and  the  magistrates  of  Edinburgh,  in  selling  certain 
lots  of  ground  for  building,  in  the  line  of  an  intended  new 
street,  (York  Place,)  exhibited  a  plan  of  the  street,  and  some 
of  the  surrounding  objects,  which  represented,  or  was  sup- 
posed to  represent,  certain  old  buildings,  (not  belonging  to 
the  vendors,)  as  taken  down,  so  as  to  make  the  street  of 
equal  breadth  through  its  whole  extent,  though  the  fen 
charters  granted  to  the  purchasers  contained  no  obligation 

1  Cowley  ?;.  Watts,  17  Eng.L.  &  Eq.  ^  j^oeffees  of  Heriot's  Hospital  v. 
147.  Gibson,  2  Dow.  301. 

2  De   Ridder   v.    Sehermerhom,    10 
Barb.  638. 

15 


170  LAW    OF    VENDORS    AND    PURCHASERS.  [OII,  X. 

on  the  grantors  to  purchase  and  remove  these  old  houses; 
held,  that  the  magistrates  were  not  bound  to  remove  them, 
or  to  purchase  them  for  that  purpose,  when  an  opportunity 
offered  of  doing  so  at  a  reasonable  price  ;  and  that  the  pur- 
chasers were  not  entitled  to  retain  the  fen  duty  till  this  was 
done. 

17.  A  deed  dated  in  1827,  and  made  between  G.  Pitt,  of 
the  one  part,  and  the  other  persons,  parties  to  the  deed,  of 
the  other  part,  recited,  that  Pitt,  being  seised  in  fee  of  the 
lands  delineated  in  the  plan  thereto  annexed  (being  Pitt- 
ville,)  and  having  it  in  (^■templation  to  establish  a  spa  at 
or  near  the  north  end  o^Bre  lands,  and  to  erect  a  pump- 
room  at  or  near  the  spot  marked  on  the  plan,  and  to  lay  out 
the  rest  of  the  lands  for  buildings,  pleasure-grounds,  roads, 
&c.,  had  caused  the  plan  to  be  drawn,  whereby  the  mode  in 
which  the  lands  were  intended  to  be  laid  out,  and  the  pur- 
poses for  which  they  were  intended  to  be  converted  and  used, 
were  described,  in  order  that  the  beauty  and  regularity  of 
the  whole  of  the  design  might  be  forever  thereafter  preserved, 
subject  only  to  such  alterations  as  should  be  made  or  ap- 
proved of  by  Pitt,  his  heirs  or  assigns,  and  as  should  not 
destroy  the  general  beauty  of  the  same  design,  and  that  each 
of  the  other  parties  to  the  deed  had  purchased  or  agreed 
to  purchase  one  or  more  of  the  pieces  of  land  described 
in  the  plan,  as  ^et  out  for  building.  The  deed  then  con- 
tained covenants  by  Pitt,  his  heirs  and  assigns,  to  complete 
the  pleasure-grounds,  roads,  &c.,  and  that  they  should  be  en- 
joyed and  used  by  the  occupiers  of  the  houses  to  be  erected 
on  the  building  ground,  and  that  Pitt,  his  heirs  or  assigns, 
would,  on  every  agreement  which  should  be  entered  into  by 
him  or  them,  for  the  sale  of  any  part  of  the  building  ground, 
require  the  purchaser  to  covenant  with  him,  his  heirs  and  as- 
signs, not  to  erect  any  messuage,  on  any  part  of  the  ground, 
which  might  lessen  in  value  any  other  of  the  messuages 
erected,  or  to  be  erected  at  Pittville.  In  1833,  Pitt  agreed  to 
sell  lots  2,  3,  4  and  5  of  the  building  ground  to  Stokes ;  and 
Stokes  agreed  with  him  to  erect  three  houses  on  those  lots, 


en.  X.]  CONSTRUCTION  OF  CONTRACTS.  171 

and  that  each  house  should  stand  back  25  feet  from  the 
western  boundary  of  the  lots,  and  that  Stokes,  his  heirs  or 
assigns,  would  not  do  or  suffer  to  be  done,  on  the  lots,  or  in 
any  building  to  be  erected  thereon,  any  act,  deed,  &c.,  which 
might  be  deemed  a  nuisance,  injury  or  annoyance,  or  which 
might  lessen  in  value  any  adjoining  or  neighboring  lands 
or  property,  or  any  houses  to  be  erected  thereon.  Stokes 
built  two  houses  on  lots  2  and  3 ;  and,  in  1833,  Pitt  con- 
veyed those  lots  to  him  ;  and  Stokes,  for  himself,  his  heirs 
and  assigns,  entered  into  a  covenant  with  Pitt,  his  heirs  and 
assigns,  with  respect  to  those  lots  and  the  houses  thereon, 
similar  to  the  last-mentioned  stipulation  in  the  agreement. 
Stokes  subsequently  gave  up  lots  4  and  5  to  Pitt,  and  aban- 
doned his  agreement  as  to  them,  and  then  sold  his  house  on 
lot  3  to  the  plaintiff.  Pitt  afterwards  agreed  to  sell  lots 
4  and  5  to  Creed.  The  agreement  stipulated  that  the  houses 
to  be  erected  on  those  lots  should  stand  back  ten  feet,  at  the 
least,  from  the  western  boundary  thereof,  and  it  contained 
a  stipulation  for  protecting  the  adjacent  property  from  in- 
jury, &c.,  similar  to  that  in  Stokes's  agreement.  Both 
Stokes  and  Creed  executed  the  deed  of  1827.  Creed  began 
to  build  a  house  on  his  lots,  thirteen  feet  distant  from  the  west 
boundary,  which  was  twelve  feet  in  advance  of  the  plain- 
tiff's house,  and  which  the  plaintiff  alleged  would  be  a  nuis- 
ance or  annoyance  to  him,  and  would  lessen  the  value  of  his 
house,  and,  consequently,  would  be  a  violation  of  the  cove- 
nant in  the  deed  of  1827,  and  of  the  agreement  of  1833.  Held, 
that  the  plan  annexed  to  the  deed  of  1827  was  merely  a 
general  plan,  and  was  not  intended  to  be  strictly  adhered  to, 
but  its  details  might  be  varied  by  Pitt,  and,  with  his  sanction, 
by  the  purchasers  from  him ;  and  that  the  plaintiff  was  not 
entitled  to  avail  himself,  as  against  either  Creed  or  Pitt,  of 
the  covenants  of  1827,  or  of  the  agreement  of  1833,  for  the 
purpose  of  preventing  the  completion  of  Creed's  house  in  the 
manner  intended,  or  the  performance  by  Pitt,  of  the  agree- 
ment with  Creed.' 

'  Schreiber  v.  Creed,  10  Simons,  9. 


172  LAW  OF  VENDORS  AND  PURCHASERS.       [CH.  X. 

18.  No  question  more  frequently  arises,  in  the  construc- 
tion of  the  class  of  contracts  under  consideration,  than  that 
relating  to  the  admissibility  of  parol  evidence^  to  explain, 
qualify,  or  control  them.  Upon  this  subject,  it  is  held,  that 
evidence  in  writing,  not  admitted,  as  e.  g.  an  agreement 
unstamped,  does  not  prevent  parol  evidence,  if  otherwise 
admist^ible.^  But  the  general  rule  applies  to  this  class  of 
written  contracts  as  to  others,  that  they  cannot  be  explained, 
varied,  or  controlled  by  parol  evidence.  Thus,  an  indefinite 
written  agreement  cannot  be  made  sufficient  by  parol  evi- 
dence.2  So,  parol  evidence  cannot  be  admitted,  that  a  pur- 
chase of  an  estate,  in  a  party's  own  name,  was  in  fact  made 
on  behalf  of  another  person.^  So,  in  case  of  a  joint  pur- 
chase of  land,  parol  evidence  is  not  admissible  of  a  previous 
agreement  for  an  unequal  division.*  So,  where  by  a  written 
agreement  the  plaintiff  agreed  to  sell,  and  the  defendant  to 
purchase,  upon  the  terms  stated,  the  Leigh  estate  ;  and  the 
defendant  agreed  to  sell,  and  the  plaintiff  to  purchase,  the 
Haresfield  estate  ;  and  it  was  not  expressed  that  the  two 
contracts  were  to  be  dependent  on  each  other ;  and  the  de- 
fendant was  unable  to  make  a  good  title  to  the  Haresfield 
estate  ;  held,  the  plaintiff  was  entitled  to  specific  performance 
of  the  contract  as  to  the  Leigh  estate  ;  and  evidence  aliunde 
was  not  admitted,  to  show  the  intention  of  the  parties,  that 
the  agreement  should  take  effect  as  an  exchange.^  So,  parol 
evidence  is  not  admissible,  to  prove  an  additional  rent  pay- 
able by  a  tenant,  beyond  that  expressed  in  the  written  agree- 
ment for  a  lease.^  So,  where  there  was  a  written  agreement 
for  a  lease,  which  was  executed  accordingly,  it  was  held, 
that  parol  evidence  was  not  admissible,  that  the  lease, 
though  in  strict  conformity  with  the  written  agreement,  was 
contrary  to  its  spirit,  as  there  was  something  dehors  the  con- 
tract agreed  upon  between  the  parties,  yet  omitted  in  the 


1  Heirn  v.  Mill,  13  Ves.  114.  *  Jarrett  v.  Jolinson,  11  Gratt.  327. 

2  Church,  &c.  v.  Farrow,  7  Rich.  Eq.         ^  Croome  v.  Lediard,  2  My.  &  Kee. 
378.  251. 

3  Bartlett  v.  Pickersgill,  1  Cox,  15.  ^  Preston  v.  Merceau,  2  Black.  1249, 


CII.  X.]  CONSTRUCTION  OF  CONTRACTS.  173 

lease  ;  though,  if  there  had  not  been  a  written  agreement, 
the  evidence  might  have  been  admissible.^  So,  evidence  is 
not  admissible,  (in  support  of  a  bill  for  specific  performance,) 
to  prove  from  conversations  before  and  at  the  time  of  sign- 
ing an  agreement  for  a  lease,  that  the  intent  of  the  parties 
was  apparent  from  the  memorandum,  though  the  same  was 
written  by  the  lessee,  and  the  words  "  clear  of  all  taxes," 
(which  was  the  purport  of  the  conversation,)  were  omitted 
in  the  memorandum.^  So,  specific  performance  of  an  agree- 
ment in  writing  for  a  lease  for  sixty  years  was  refused,  upon 
parol  evidence  of  an  alteration  stipulated  for  at  the  same 
time,  and  upon  the  faith  of  which  the  party  executed.  A  dis- 
tinction was  taken  between  the  case  of  a  defendant  refusing, 
and  a  plaintiff  seeking,  the  execution  of  an  agreement  under 
such  circumstances.^  So,  an  agreement  in  writing,  to  con- 
vey such  lots  as  the  grantor  shall  select,  cannot  be  changed 
by  parol,  so  as  to  require  the  grantor  to  convey  such  lotIRs 
the  grantee  may  select.*  So,  the  defendant  signed  a  memo- 
randum, as  follows  :  "  I  have  sold  to  (the  plaintiff)  four 
building  lots  ;  first  two  lots  ninety  feet  front,  depth  about 
one  hundred  and  fourteen  and  ninety-six  and  a  half;  next 
two  lots  one  hundred  feet  front,  depth  about  ninety-two  and 
seventy-six  feet ;  all  the  above  lots  the  same  as  laid  down  on 
the  plan  :  First  two  mentioned  lots  at  five  cents  a  foot;  next 
two  lots  at  four  and  a  quarter  cents  a  foot."  The  plaintifT 
brought  an  action  against  the  defendant,  alleging  in  his 
declaration,  that  he  had  tendered  to  the  defendant  twenty- 
five  per  cent,  of  the  price,  and  demanded  a  deed ;  that  he 
was  ready  to  execute  mortgages  for  the  balance,  and  that 
the  defendant  had  refused  to  execute  a  deed.  At  the  trial, 
the  plaintiff  offered  parol  evidence,  that  when  the  memoran- 
dum was  executed,  it  was  agreed  between  him  and  the 
defendant,  that  one  quarter  of  the  purchase-money  should 
be  paid  in  cash,  on  delivery  of  the  deed,  and  the  other  three 

1  Davies  v.   Tilton,  2  Dru.   &  War.         ^  ciarke  v.  Grant,  14  Ves.  524. 
232.  '  *  Wildbahn   v.   Robidoux,    11    Mis. 

2  Rich  V.  Jackson,  4  Bro.  C.  C.  514.      659. 

1'5  * 


174  LAW    OF   VENDORS    AND    PURCHASERS.  [CH.  X. 

quarters  secured  by  notes  and  mortgages,  and  that  the  notes 
should  be  payable  in  one,  two,  and  three  years,  with  interest 
yearly.  Held,  this  evidence  was  inadmissible,  both  because 
it  would  vary  the  written  agreement,  the  legal  effect  of  which 
was  to  pay  cash  on  demand,  within  a  reasonable  time  ;  and 
because  it  was  offered  in  proof  of  a  contract  for  the  sale  of 
land,  contrary  to  the  Statute  of  Frauds.^ 

19.  The  general  rule  above  stated,  however,  is  not  without 
its  exceptions,  more  especially  in  Courts  of  Equity.  Thus, 
although  parol  evidence  in  relation  to  a  written  contract  is 
excluded  for  the  purpose  of  enforcing,  it  is  sometimes  ad- 
mitted for  the  purpose  of  resisting  specific  performance? 
Thus,  parol  evidence  of  declarations  made  by  an  auctioneer 
at  the  sale,  warranting  the  quantity,  was  received  in  oppo- 
sition to  a  specific  performance,  on  the  ground  of  fraud."' 
And  where  a  parol  agreement,  varying  the  written  agree- 
nlknt,  is  set  up  by  the  defendants  in  a  suit  for  specific  per- 
formance, and  supported  by  evidence  affording  a  presumption 
or  suspicion  of  its  existence,  an  inquiry  will  be  directed.* 
So,  parol  evidence  is  admissible,  in  opposition  to  specific 
performance  of  a  written  agreement,  upon  the  heads  of 
mistake  or  surprise,  as  well  as  of  fraud ;  and  upon  such 
evidence,  a  bill  will  be  dismissed.  So,  another  bill  for  specific 
performance,  corrected,  according  to  the  same  evidence,  but 
contradicted  by  the  answer,  was  also  dismissed.  (See  Mis- 
take, Fraud.)  ^  But  the  plaintiff,  in  a  bill  for  specific  per- 
formance, cannot  show  by  parol  evidence,  that  by  fraud  the 
written  agreement  does  not  express  the  real  terms,  and  thus 
obtain  specific  performance  with  a  variation.^ 

20.  The  principle,  which  excludes  parol  evidence  as  to 
written  contracts  for  the  sale  and  purchase  of  lands,  is  some- 
times brought  in  question  with  reference  to  subsequent  agree- 
ments, attempted  to  be  set  up  by  way  of  alteration,  waiver, 

1  Ryan  v.  Hall,  13  Met.  520.  *  Van  v.  Corpe,  3  Myl.  &  Kee.  277. 

2  Hi,<;f,nnson  v.  Clowes,  15  Ves.  515.  ^  Townsheud  v.  Stangroom,  6  Ves. 
»  Winch   V.   Winchester,    1    Ves.    &     328. 

Beam.  375.  e  Woollam  v.  Hearn,  7  Ves.  211. 


CH.  X.]  CONSTRUCTION  OF  CONTRACTS.  175 

or  discharge  of  such  contracts.  And  the  general  rule  is,  that 
a  written  agreement  within  the  Statute  of  Frauds  may  be 
varied  by  a  subsequent,  parol,  distinct,  and  collateral  agree- 
ment.i  Thus,  the  plaintiff  gave  a  bond  to  sell  land  to  the 
defendant,  who  gave  him  notes  for  the  consideration,  and 
took  possession ;  but  afterwards,  in  pursuance  of  a  parol 
agreement,  the  land  was  surrendered  to  the  plaintiff,  who 
finally  sold  it,  though  the  bond  was  not  cancelled  or  surren- 
dered. Held,  no  action  would  lie  on  the  notes,  the  vvlTole 
contract  being  discharged.^  So,  where  a  party  voluntarily, 
though  by  parol,  abandons  an  agreement  in  writing,  for  the 
sale  or  exchange  of  lands,  with  the  assent  of  the  other  party, 
because  he  is  not  in  a  situation  to  perform  the  same,  it  seems, 
he  cannot  afterwards  demand  a  specific  performance.^  So, 
where,  in  articles  for  the  sale  of  land,  no  place  is  mentioned 
for  delivery  of  the  deed ;  the  vendor  is  bound  to  seek  the  ven- 
dee, and  tender  a  deed.  But  the  parties  may  afterwards,  by 
parol,  agree  on  the  place ;  or  the  vendee  may  appoint  it ;  and 
a  tender  at  that  place  will  be  sufficient.*  But  it  has  been  held 
that  a  purchaser,  who  in  his  written  contract  stipulates  for  a 
good  title,  cannot  be  required  to  complete  the  purchase  upon 
a  defective  title,  on  the  ground  of  a  verbal  waiver  of  such 
stipulation.  Thus  an  agreement  was  made  in  writing,  to 
sell  several  lots  of  land,  and  to  make  a  good  title  to  them, 
and  a  deposit  was  paid.  It  was  afterwards  discovered,  that  a 
good  title  could  not  be  made  to  one  of  the  lots.  The  vendor 
delivered  possession  of  all  the  lots,  which  the  vendee  accepted. 
In  an  action  to  recover  the  remainder  of  the  purchase-money, 
the  declaration  stated,  that  the  plaintiff  agreed  to  deduce  a 
good  title  to  all  the  lots  except  one,  and  that  the  vendee  dis- 
charged and  exonerated  him  from  making  out  a  good  title 
to  that  lot,  and  waived  his  right  to  require  the  same.  Held, 
oral  testimony  was  not  admissible  of  such  waiver.^  And, 
though  a  parol  waiver  of  a  written  contract,  amounting  to  a 

1  Townshend  v.  Stangroom,  6  Ves.  *  Franchot  v.  Leach,  5  Cowen,  506. 

328.  ^  Goss  V.  Lord  Nugent,  5   Barn.   & 

■■^  Dearborn  v.  Cross,  9  Cowcn,  48.  Adol.  58  ;  2   Nev.  &  Mann.  28.     See 

8  Baldwin  v.  Salter,  8  Paige,  473.  Inge  v.  Lippingwell,  2  Dick.  469. 


176  LAW  OF  VENDORS  AND  PURCHASERS.       [m.  X. 

complete  abandonment,  and  clearly  proved,  would  bar  a  spe- 
cific performance,  or  even  parol  variations,  so  acted  upon,  that 
the  original  agreement  cguld  no  longer  be  enforced  without 
injury  to  one  party ;  such  variations  verbally  agreed  upon  are 
not.sulTicient,  the  situation  of  the  parties  in  all  other  respects 
remaining  the  same,  more  especially  where  the  variations 
are  all  for  the  advantage  of  the  defendant,  by  gratuitous 
covenants  of  the  plaintiff.'  And,  upon  a  bill  praying  per- 
formance of  an  agreement  duly  signed,  but  offering  to  the 
defendant  the  benefit  of  certain  variations,  contained  in  a 
subsequent  unsigned  memorandum,  the  Court  will  decree 
specific  performance  with  those  variations,  if  the  defendant 
elects  to  take  advantage  of  them ;  if  not,  of  the  original 
agreement.  A  treaty  and  negotiations  foi  a  variation  wiU 
not  amount  to  a  waiver,  unless  the  circumstances  show,  that 
the  parties  intended  an  absolute  abandonment  and  dissolu- 
tion of  the  contract.^ 

21.  Written  agreement,  on  the  sale  of  land,  that  the  pur- 
chaser shall  search  for  coal,  under  the  direction  of  the  vendor, 
for  a  limited  time  ;  and  that  if,  within  that  time,  coal  be 
found  in  a  sufficient  body  to  work,  the  purchaser  shall  pay 
an  augmented  price  for  the  land.  Held,  a  parol  agreement, 
varying  the  time  within  which  the  search  may  be  continued, 
(and  consequently  obliging  the  purchaser  to  pay  the  aug- 
mented price,)  is  within  the  Statute  of  Frauds,  and  will  not 
be  enforced  by  a  Court  of  Equity.^  So  it  has  been  held  in 
Massachusetts,  where  no  Court  exists  with  full  equity 
powers,  that  the  Court  has  no  power  to  decree  specific  per- 
formance of  a  contract,  unless  every  part  of  it  has  been 
reduced  to  writing.  Thus,  where  the  defendant  contracted 
in  writing  to  execute  and  deliver  a  deed  of  land,  upon  pay- 
ment of  certain  notes  given  for  the  purchase-money,  and 
made  a  subsequent  verbal  promise  to  deliver  the  deed  upon 
payment  of  the  notes  before  they  should  fall  due  ;  held,  a 
bill  in  equity  against  him,  for  specific  performance  of  the 

1  Price  V.  Dyer,  17  Ves.  356.  ^  jjeth  v.  Wooldridge,  6  Rand.  605, 

2  Robinson  v.  Page,  3  Russ.  119.  607. 


CH.  X.]  CONSTRUCTION  OF  CONTRACTS.  177 

contract  as  modified  by  the  v^erbal  agreement,  could  not  be 
sustained.^ 

22.  Though  parol  evidence  cannot  be  admitted,  for  the 
purpose  of  varying  a  written  agreement,  it  may  be,  for  the 
purpose  of  raising  an  equity,  founded  on  the  agreement,  by 
proof  of  collateral  circumstances?  (a)  "  In  such  cases,  parol 
evidence  is  not  used  to  vary,  contradict,  or  control  the  written 
contract  of  the  parties,  but  to  apply  it  to  the  subject-matter. 
For  this  reason,  any  evidence  which  tends  to  indicate  the 
nature  of  the  subject-matter  included  in  a  written  contract, 
which  would  otherwise  be  uncertain  or  ambiguous,  and 
to  determine  its  application  relatively  to  other  objects,  is 
admissible.  Thus,  to  show  the  position  of  land  and  its 
condition,  the  mode  of  its  use  and  occupation,  that  it  had 
acquired  a  local  designation  or  name,  and  whether  it  was 
parcel  of  a  particular  estate."  ^  Thus,  w^here  a  memoran- 
dum was  given  to  a  tenant,  agreeing  to  renew  a  lease  ; 
held,  parol  evidence  was  admissible,  that  the  cellar  of  the 
adjoining  tenement  had  been  occupied  therewith,  and  was 
necessary  to  the  tenant's  business,  for  the  purpose  of  show- 
ing that  it  was  included  in  the  lease.''  So,  where  an  act  of 
Congress  provided,  that  a  confirmee,  whose  title  was  dis- 
puted, should  prove  "  inhabitation,  cultivation,  or  posses- 
sion;" held,  they  might  be  proved  by  parol  evidence.'^  So, 
a  written  contract  to  convey  an  undivided  moiety  of  lan«l,  is 
not  contradicted,  varied,  or  added  to  by  parol  evidence,  that 
the  parties  agreed  to,  and  actually  made,  a  certain  division.^ 

1  Brooks  V.  Wheelock,  11  Pick.  439.  *  Crawford  v.  Morris,  5  Graft.  90. 

2  Davis  V.  Symonds,  1  Cox,  402.  ^  Quitard  v.  Stoddard,  16  How.  494. 
8  Per  Bigelow,  J..  Gerrish  v.  Towne,         ^  Shiels  v.  Stark,  14  Geo.  429. 

3  Gray,  87-8. 


(a)  It  is  said,  that  to  establish  a  title  to  land  under  a  parol  contract,  the 
contract  must  be  express,  (not  implied  from  acts,)  with  all  its  terms  and  con- 
ditions, clearly  and  explicitly  proved  on  both  sides,  fair,  founded  on  a  suf- 
ficient consideration;  the  purchaser  must  have  exclusive  possession,  under 
the  cojitract ;  and  it  must  be  so  far  executed,  that  it  would  be  a  fraud  on 
the  purchaser  not  to  execute  it  entirely.  Greenlee  v.  Greenlee,  22  Ponn.  225. 


178  LAW   OF   VENDORS   AND    PURCHASERS.  [CIT.  X. 

23.  Agreement  in  writing,  to  convey  to  G.  W.  Gerrish 
"  the  wharf  and  Oats  occupied  l)y  Towne  &  Hardin,  and 
owned  by  Francis  Head."  Parol  evidence  was  oilered,  that 
two  lots  of  land,  only  one  of  which  bounded  on  the  sea,  with 
a  street  betw^een  them,  were  both,  at  the  time  of  the  agree- 
ment, owned  by  Head  and  occupied  by  Towne  &  Co.,  for 
the  purpose  of  landing  and  storing  wood  and  lumber,  and 
known  as  Towne  &  Hardin's  wharf,  and  had,  before  the 
street  was  laid  out,  formed  parts  of  one  lot,  and  been  used 
together,  and  been  occasionally  covered  by  the  tide.  Held, 
the  description  being  a  general  one,  referring  to  extrinsic 
objects  and  circumstances,  the  evidence  was  admissible,  and 
the  vendee  was  entitled  to  a  conveyance  of  both  lots.^ 

24.  Bill  for  specific  performance.  The  plaintiff  and  de- 
fendant entered  into  an  agreement  in  writing,  that  the 
plaintiff  should  do  the  brick  work  and  plastering  on  sixteen 
tenements  in  St.  Francis  Street,  between  Dearborn  and 
Wilkinson  Streets,  in  Mobile,  and  on  completion  of  the 
work,  that  the  defendant  should  give  the  plaintiff  a  deed  for 
three  of  them,  not  specifying  which  of  the  sixteen.  Held, 
such  specification  was  not  a  term  of  the  contract.,  but  related 
to  the  subject-matter.,  as  to  which  parol  evidence  was  admis- 
sible ;  and  the  parties  themselves  having  subsequently  desig- 
nated the  tenements,  and,  moreover,  as  they  were  all  of  the 
same  value,  thus  enabling  the  Court  to  make  the  designa- 
tion, the  plaintiff,  having  fulfilled  his  part  of  the  contract, 
was  entitled  to  a  decree.''^ 

25.  Agreement,  to  lease  for  years  "  the  Adams  House, 
situate  on  Washington  Street,  in  Boston."  Held,  parol  evi- 
dence was  admissible,  that  the  parties  intended  to  include 
in  the  lease  only  so  much  of  the  building  as  was  fitted  up 
for  a  hotel,  by  the  name  of  the  Adams  House ;  and  not  the 
distinct  shops  occupying  the  whole  of  the  ground-floor  ex- 
cept the  entrance  to  the  hotel.  Shaw,  C.  J.,  says,  in  sub- 
stance: "  What  was  embraced  in  the  bond  by  the  description, 

1  Gerrish  v.  Towne,  3  Gray,  82.  2  Ellis  v.  Burden,  I  Ala.  N.  S.  458. 


CH.  X.]  CONSTRUCTION  OF  CONTRACTS.  179 

'Adams    House?'     It  is  not  therein  described  as  a  hotel. 
Looking  at  the  mere  contract  itself,  it  might  have  been  free 
from  all  ambiguity ;  because,  in  applying  the  description,  it 
must  have  appeared  that  there  was  an  estate  definitely  de- 
scribed, and  as  well  known  by  that  name  as  the  Old  State 
House  or  the  Boylston  Market  House.     It  is  purely  matter 
of  description,  and  must  be  established  by  evidence  aliunde. 
But  the  facts  show  that  there  is  an  estate  corresponding  in 
part  to  the  description,  to  wit,  a  house  known  as  the  Adams 
House  in  Washington    Street,  certain   parts   of  which  had 
been  previously,  and  up  to  the  time  and  at  the  time  of  the 
contract,  used   and  occupied  as  a  hotel ;  and  certain  other 
parts  of  it  used  and  occupied  for  shops  for  the  sale  of  goods, 
let  to  separate  tenants,  with  no  interior  communication,  nor 
any  other  connection  with  the  residue,  as  a  hotel,  than  that 
of  relative  position,  being  supported  by  the  same  foundation 
and  sheltered  by  the  same  roof.     But  this  is  common,  espec- 
ially in   cities,  with  entirely  distinct  tenements  or  holdings. 
This  description,  therefore,  so   brief  in  its  terms,  when  ap- 
plied to   the  estate  in  question,  leaves  it  in  doubt  whether 
these  stores  were  excluded  or  included  in  the  term  '  Adams 
House.'     In  ascertaining  what  is  parcel,  what  are  the  monu- 
ments, bounds,  abuttals,  names  of  streets  or   places,  it  is 
always  competent,  and  indeed  often  necessary,  to  go  into 
parol   evidence.     In    seeking    for    all    surrounding    circum- 
stances, to  throw  light  on  matter  of  description,  the  object 
is  to  obtain  from  the  words  used  in  the  instrument,  in  the 
light  of  all  such  circumstances,  the  intent  and  meaning  of 
the  parties.     But  in  coming  to  apply  the  description  to  the 
contract,  there  may  remain  an  uncertainty  in  such  applica- 
tion ;  this  constitutes  a  latent  ambiguity ;  and  parol  evidence 
is  admissible  to  explain  what  was  intended."  ' 

1  Sargent  v.  Adams,  3  Gray,  72,  76,  77,  78. 


180 


LAW  OF  VENDORS  AND  PURCnASERS. 


[cn.  XI. 


CHAPTER  XL 


TIME   OF   PERFORMING   CONTRACTS. 


I.  Time,  when  of  the  essence  of  the 
contract. 

9.  When   not  of   the  essence  of  the 
contract. 

14.  Title  at  the  time  of  hearing,  <J-c., 
when  sufHcient. 
.  21.  Waiver,  &c.,  as  to  time. 


29.  Necessity  and  effect  of  notice  in 
reference  to  time. 

41.  Time,  in  connection  with  delivery 
of  ahsti-acts. 

47.  Deterioration  from  lapse  of  time. 

50.  Construction  of  contracts  as  to 
time. 


1.  Among  the  most  important  incidents  of  contracts  for 
the  sale  and  purchase  of  lands,  is  that  of  the  time  at  which, 
or  within  which,  they  are  to  be  performed.  Upon  this  sub- 
ject, it  has  been  generally  held,  more  especially  at  laiv,  that 
time,  with  reference  to  the  performance  of  such  a  contract, 
is  not  immaterial ;  ^  (a)  but  is  of  the  essence  of  the  contract, 

1  Alley  V.  Deschamps,  13  Ves.  225;  Tiernau    v.    Roland,     15    Penn.    429; 

Harrington  v.  Wheeler,  4  Ves.  690,  n.;  Benedict  v.  Lynch,   1  Johns.  Ch.  375 ; 

Guest  V.  Homfrev,    5   Ves.    818.     See  Brashier  u.  Gratz,  6  Wheat.  207. 
Wright  V.Howard,  1  Sim.  &  St.  190; 


(a)  A  bill  for  specific  performance  is  an  application  to  the  discretion,  or 
rather  the  extraordinary  jurisdiction,  of  the  Court,  which  cannot  be  exer- 
cised in  favor  of  persons  who  have  slept  on  their  rights,  or  acquiesced  for 
a  long  time  in  a  title  and  possession  adverse  to  their  claim.  Laches  is  as 
strong  against  in  not  prosecuting  as  in  not  defending  a  suit.  Moore  v. 
Blake,  1  Ball  &  Beat.  68.  Substantially  the  same  principle  applies  to  the 
attempted  performance  of  a  contract  before  as  after  the  time  appointed. 
Thus,  in  case  of  an  agreement  to  convey  land  at  a  certain  time,  for  which 
the  purchaser  was  to  assign  two  land  warrants  ;  held,  a  tender  of  the 
warrants  before  the  time  gave  the  latter  no  rights.  Reed  v.  Redman,  5 
Ind.  409.  It  is  said,  the  English  Court  of  Chancery  has  never  laid  down 
the  broad  principle,  that  time  was  never  important ;  on  the  contrary,  the 
present  doctrine  there  is,  that  where  time  is  really  material  to  the  parties, 


CH.  XI.]  TIME   OF   PERFORMING   CONTRACTS.  181 

more  especially  where  the  subject  is  exposed  to  a  daily 
variation  in  value ;  or  where  lapse  of  time  has  made  a  great 
change  in  the  circumstances ;  or  where  the  parties  appear  to 
have  intended  that  the  time  should  be  strictly  adhered  to ; 
or  where  the  remedies  of  the  parties  are  not  mutual.'  So, 
it  has  been  held,  that  in  an  agreement  for  the  sale  of  lands, 
time  is  always  material,  ivhen  either  party  chooses  that  it  shall 
be  so.  Each  of  them  has  a  right  to  demand  the  perform- 
ance of  the  contract  on  the  stipulated  day ;  and,  if  the  other 
party  is  then  unwilling  or  unable  to  perform,  may  actually 
elect  to  rescind  it.  And  by  such  an  election  he  is  wholly 
freed  from  the  obligations  of  the  contract ;  and  a  Court  of 
Equity  cannot  subsequently  decree  its  specific  performance.^ 
So,  time  is  held  essential,  whenever  it  materially  affects  the 
benefit  to  be  derived  from  the  consideration  or  the  convey- 
ance.^ Thus,  time  is,  to  a  great  extent,  of  the  essence  of 
a  contract  entered  into  with  an  ecclesiastical  corporation. 
Therefore,  where  the  plaintiff  agreed  to  take  a  concurrent 
lease  of  a  dean  and  chapter,  and  to  pay  the  fine  in  January, 
but  was  not  ready  with  the  money  in  March  following ;  a 
bill  filed  by  him  for  a  specific  performance  was  dismissed 
with  costs.*  So,  where  the  subject  of  contract  was  a  life 
annuity,  and  the  defendant  insisted  that  time  was  of  the 
essence  of  the  contract,  a  motion  for  reference  to  the  master 
upon  the  title  was  refused.^  So,  if  a  contract  relate  to  wild 
and  uncultivated  lands,  where  the  principal  value  is  timber, 
time  may  be  of  the  essence  of  the  contract.^  So,  the  dis- 
tinction between  conditions  precedent  and  subsequent  is  ap- 

1  Doloret  v.   Rothschild,   1   Sim.  &        ^  Kirby  v.  Hamson,  2  Ohio  (N.  S.) 

Stu.  590  ;  Hipwell  v.  Knight,  1  You.  &  326. 

Coll.  419;    Westerman  v.   Means,    12         *  Carter  y.  Ely,  7  Sim.  211. 
Penn.  97  ;  Page  v.  Hughes,  2  B.  Mon.        ^  Withy  v.  Cottle,  Turn.  &  Russ.  78. 
441  ;  Nodinew.  Greenfield,  7  Paige,  544.         ^  Rogers  v.  Saunders,   16  Maine,  92, 

'^  Dominiek  v.  Michael,  4  Sandf.  374.  See  Boults  v.  IJklitchell,  15  Penn.  371. 


ties,  the  right  to  a  specific  performance  may  depend  upon  it ;  and  the  same 
doctrine  prevails  in  the  Court  of  the  United  States.  Garnett  v.  Macon, 
6  Call.  308. 

16 


182  LAW   OF   VENDORS   AND   PURCHASERS.  [CH.  XI. 

plicablc  to  the  question  of  time.  The  rule  is,  that  equity 
cannot  relieve  from  the  consequences  of  a  condition  prece- 
dent, unperformed.  But,  upon  breach  of  a  condition  subse-' 
quent,  which  would  work  a  forfeiture  or  devest  an  estate, 
equity,  acting  upon  the  principle  of  compensation,  will 
interpose,  and  prevent  the  forfeiture  or  devestment,  provided 
it  can  be  given  with  certainty  in  damages.  Thus,  the  de- 
fendant sold  to  the  plaintiff  a  lot  of  land.  By  an  agreement 
under  the  hands  and  seals  of  the  parties,  the  plaintiff  cov- 
enanted to  build  within  a  certain  time,  and  give  a  bond  and 
mortgage  for  a  part  of  the  price,  and  pay  the  balance  or 
give  a  bond  and  mortgage  for  the  whole  by  a  specified  day ; 
and  the  defendant  covenanted  to  give  a  deed  on  this  day. 
There  was  also  a  clause,  expressly  showing  that  the  agree- 
ment was  in  all  respects  to  be  void,  provided  the  plaintiff 
failed  to  perform  any  one  of  the  covenants.  He  entered, 
but,  from  untoward  circumstances,  and  not  from  any  act  on 
the  part  of  the  defendant,  was  not  ready  with  his  money  or 
the  bond  and  mortgage  on  the  day  specified^  but  made  a 
tender  on  the  next  day.  Held,  a  condition  precedent,  and 
that  the  Court  could  not  relieve.^  So,  although  where  a 
contract  has  become  invalid  at  law  by  lapse  of  time,  equity 
will  grant  relief,  if  time  is  not  of  the  essence  of  the  contract ; 
yet,  where  the  plaintiff  has  unjustifiably  omitted  to  execute 
his  part  of  the  contract  by  the  time  appointed,  and  the  de- 
fendant has  not  by  his  acts  acquiesced  in  that  delay,  the 
Court  will  not  compel  specific  performance.  Nor  will  they  do 
it,  where  the  remedies  are  not  mutual,  and  where  the  party 
who  is  not  bound  lies  by  for  the  purpose  of  seeing  whether 
it  will  be  a  gainful  or  a  losing  bargain,  and  thus  determining 
whether  to  abandon  or  enforce  it.^  So,  time  will  be  of  the 
essence  of  a  contract  to  convey,  where  the  parties  declare 
the  forfeiture  of  the  contract,  in  case  payments  are  not  made 
according  to  its  terms.     Nor  will  the  Court  relieve  from  a 


1  Wells  V.  Smith,  2  Eclw.  78.  Shuffleton  v.  Jenkins,   1  Morris,  427  ; 

2  Rogers  v.  Saunders,  16  Maine,  92  ;        Scott  v.  Fields,  8  Ohio,  92. 


CH.  XI.]  TIME   OF  PERFORMING   CONTRACTS.  183 

forfeiture  or  a  penalty  to  be  incurred  by  the  failing  party ; 
as  where  the  vendee  agreed  to  forfeit  the  first  payment  and 
the  contract,  in  case  he  did  not  make  the  others  at  the  times 
stipulated.^  So,  where  a  bond  is  given  to  convey  land,  if  a 
certain  sum  is  paid  by  a  particular  day ;  unless  the  money  is 
paid  at  that  day,  the  bond  cannot  be  enforced.^  So,  after 
seven  years,  the  Court  will  refuse  to  decree  specific  perform- 
ance of  a  contract,  in  the  part  execution  of  which  the  com- 
plainants, or  those  under  whom  they  claim,  have  expended 
large  sums  of  money,  although  the  first  default  was  on  the 
part  of  the  defendant,  and  such  failure  probably  prevented 
an  execution  on  the  part  of  the  complainants ;  circumstances 
having  so  changed,  that  neither  party  could  derive  the  antici- 
pated benefits  from  an  execution  of  the  contract.^  So,  though 
time  may  not  be  made,  by  the  terms  of  the  contract,  of  the 
essence  thereof;  it  may  be  by  the  conduct  of  parties,  or 
subsequent  circumstances ;  and,  in  such  case,  the  party  in 
default  cannot  demand  specific  execution.*  So,  a  motion 
for  an  injunction,  to  restrain  an  action  against  an  auctioneer 
for  the  deposit,  was  refused,  where  there  had  been  great  delay 
on  the  part  of  the  vendor .^  So,  a  bill,  for  specific  perform- 
ance of  articles  for  the  purchase  of  an  estate,  was  dismissed 
with  costs  ;  because  the  title  was  not  laid  before  the  vendee's 
counsel  within  the  time  limited.^  So,  upon  sale  of  a  rever- 
sion, part  of  the  terms  was,  that  the  purchase-money  be  paid 
by  a  certain  time  ;  not  being  so,  by  default  of  the  vendee, 
the  vendor  was  discharged  from  his  contract.'''  So,  where 
there  was  a  proposal  to  sell  a  lot  of  land  for  a  certain  price, 
provided  the  vendee  came  to  -close  the  trade  within  two 
weeks  from  a  certain  day ;  and  he  came  at  40  minutes  be- 
fore 12  o'clock  at  night,  when  the  vendor  was  abed  and 
asleep,  and  half  a  mile  distant  from  his  place  of  business ; 

1  Scott  V.  Fields,  8  Ohio,  92.  326 ;  Lloyd  v.  Collett,  4  Bro.  469 ;  4 

^  Shuttteton  f.  Jenkins,  1  Morris,  427.  Ves.  689,  n. 

'^  Pratt  V.  Carroll,  8  Crunch,  471.  "^  Lewis  v.  Lord  Lechmere,  10  Mod. 

*  Jackson  v.  Ligon,  3  Leigh,  161.  503. 

*  Radcliife  v.   Warrington,   12    Ves.  '  Newman  v.  Rogers,  4  Bro.  C.  C. 

391. 


184  LAW    OF   VENDORS    AND    PURCHASERS.  [CH.  XI. 

held,  the  latter  was  not  bound.^  So,  where  a  contract  for 
the  sale  of  a  city  lot  provided,  that  the  purchaser  should,  on 
or  before  a  particular  day,  build  and  inclose  a  house  upon 
the  front  of  the  lot,  or  in  lieu  thereof  on  that  day  pay  $1,000 
towards  the  purchase-money ;  also,  if  he  neglected  or  failed 
to  perform  any  of  the  covenants  therein  contained  at  the 
times  limited,  all  his  right  or  interest  in  the  premises,  either 
in  law  or  equity,  should  cease  ;  held,  the  parties  had  made 
the  payment  at  the  day  an  essential  part  of  the  contract ; 
and  the  vendee,  who  had  not  attempted  to  build  the  house, 
and  had  without  any  legal  excuse  failed  to  make  the  pay- 
ment at  the  time  specified,  was  not  entitled  to  a  decree  for 
specific  performance.^  So,  where  agreement  was  to  be  void, 
if  the  purchaser's  counsel  should  be  of  opinion,  that  a 
marketable  title  could  not  be  made  by  a  certain  time ;  the 
counsel  being  of  that  opinion,  a  bill  by  the  purchaser  for  a 
specific  performance,  with  a  compensation,  was  dismissed, 
with  costs ;  and  an  application,  afterwards  made  by  the 
plaintiff,  that  his  deposit  might  be  set  off  against  the  de- 
fendant's costs,  and  the  surplus  (if  any)  paid  to  him,  was 
rafused,  with  costs.^  So,  specific  performance  will  not  be 
enforced  against  the  vendor,  where  the  vendee  has  neglected 
to  comply  with  the  conditions  within  the  time  limited,  and 
the  vendor  has,  in  consequence,  sold  and  conveyed  to  an- 
other purchaser.  So,  specific  performance  will  not  be 
enforced  against  a  subsequent  purchaser,  for  valuable  con- 
sideration, without  notice,  who  has  acquired  the  legal  title ; 
especially  in  favor  of  a  vendee,  who  has  failed  to  comply 
with  his  own  contract,  within  the  time  limited.*  So,  where 
the  payment  of  purchase-money,  secured  by  a  bond,  was 
subject  to  the  condition,  that  A.,  or  his  legal  representative, 
or  attorney,  should  on  or  before  a  certain  day  execute  to  the 
obligor  a  release  for  a  certain  portion  of  the  land  sold  ;  and, 
if  the  same  could  not  be  procured,  then  a  deduction  to  be 

1  Curtis  V.  Blair,  26  Miss.  309.  ^  Williams  v.  Edwards,  2  Sim.  78. 

2  Wells  V.  Smith,  7  Paige,  22.  *  Doan  v.  Gibbes,  1  Bai.  Eq.  371. 


CH.  XI.]  TIME   OF   PERFORMING   CONTRACTS.  185 

made  for  that  portion,  at  a  certain  rate  per  acre ;  held,  that 
time  was  of  the  essence  of  the  contract,  and,  as  the  release 
was  not  executed  within  the  time,  the  stipulated  deduction 
must  be  made.^  So,  a  vendor  is  not  bound  to  tender  a  deed 
and  demand  payment,  except  for  the  purpose  of  enabling 
him  to  affirm  the  contract,  and  to  recover  the  purchase- 
money  in  a  suit  at  law.  And  where  the  payment  at  a  par- 
ticular day  is  made  an  essential  part  of  the  contract,  the 
vendee,  in  order  to  obtain  specific  performance,  must  tender 
or  offer  the  money  at  the  time  specified,  upon  the  receipt  of 
a  deed.2  So,  where  one  contracts  to  convey  land  to  another, 
on  a  certain  day,  in  fee  simple,  and  free  from  incumbrance, 
or  pay  a  certain  sum ;  and  on  that  day  has  not  a  perfect 
title ;  the  vendee  may  recover  such  sum  without  any  tender 
of  the  money  or  of  security  for  it.^  So,  if  a  vendee  agrees 
to  pay  the  price  within  a  certain  time,  in  consideration  of 
which  payment  he  is  to  receive  a  deed ;  he  cannot  at  law 
entitle  himself  to  such  deed,  by  making  a  tender  after  the 
time.*  So,  where,  in  a  contract  to  buy  and  sell  on  a  par- 
ticular day,  each  promise  is  the  sole  consideration  of  the 
other;  neither  party  can  maintain  an  action,  without  alleging 
a  readiness  to  perform  on  that  day,  or  an  excuse  for  the 
want  of  it,  caused  by  the  act  of  the  defendant.^  So,  where 
the  defendant  agreed  to  let  to  the  plaintiff"  a  store,  upon  his 
procuring  one  A.  as  surety  for  the  rent  before  a  certain  day, 
which  the  plaintiff"  failed  to  do ;  held,  the  plaintiff  could 
not  have  a  decree  for  specific  performance  nor  an  injunction.^ 
So,  if  one  who  has  bound  himself  to  execute  a  title  to  land 
as  soon  as  he  can  obtain  it,  neglects  for  more  than  two 
years  to  attempt  to  obtain  such  title ;  this  is  a  breach  of  the 
bond,  unless  he  proves  reasonable  diligence  to  procure  the 
title."    So,  where  a  bond  was  given  to  make  title  to  land,  the 

1  Westerman  v.  Means,  12  Penn.  97.  ^  Perry  v.  Wheeler,  24  Verm.  286. 

^  Wells  V.  Smith,  7  Paige,  22.  ^  Mitchell  v.   Wilson,   4    Edw.    Ch. 

3  Holmes  v.  Holmes,  12  Barb.  137.  697. 
*  Hill  V.  Fisher,  34  Maine,  143.  '^  Garnett  v.  Yoe,  17  Ala.  74. 

16* 


186  LAW   OF   VENDORS   AND   PURCHASERS.  [CH.  XI. 

title  to  which  appeared  by  the  bond  to  be  in  a  third  person  ; 
and  the  obligee  lived  for  three  years,  during  which  the 
obligor  acquired  no  title,  nor  attempted  to  do  it ;  held,  the 
delay  was  an  unreasonable  one,  and  a  forfeiture  of  the  bond  ; 
and  the  administrator  of  the  obligee  was  the  proper  party  to 
bring  a  suit  upon  it.^  So,  though  no  time  is  fixed,  or  time 
is  not  essential,  the  vendor  cannot  trifle  with  the  purchaser 
by  needless  delay.  But  the  latter,  not  capriciously,  or  with 
a  design  to  surprise,  may  fix  a  reasonable  time  for  the  con- 
veyance ;  after  which  he  shall  rescind  the  contract.^  So, 
where  there  was  a  sale  of  land,  the  purchaser  agreeing  to 
pay  $100  therefor  by  instalments,  upon  payment  of  which 
the  seller  agi-eed  to  convey ;  but,  on  failure  of  payment,  might 
reenter ;  and  all  the  payments  fell  due,  but  none  w^ere  made  ; 
and,  on  application  of  the  purchaser,  the  time  was  extended ; 
but  no  payment  being  then  made,  the  seller  gave  the  pur- 
chaser notice  to  quit ;  held,  he  had  a  right  to  rescind  the 
contract,  and  by  so  doing  had  terminated  all  the  right  of  the 
purchaser  in  the  premises.^  So,  where  one  party  to  an  agree- 
ment trifles,  or  shows  a  backwardness  in  performing  his 
part  of  it,  equity  will  not  decree  a  specific  performance  in 
his  favor;  especially  if  the  circumstances  and  situation  of 
the  other  party  are  materially  altered  in  the  mean  time.* 
Thus,  specific  performance  was  refused,  on  the  laches  and 
trifling  conduct  of  the  plaintiff;  the  contract  being  for  a 
sale  to  the  plaintiff,  under  a  bankruptcy,  of  a  reversionary 
interest  for  life;  which  in  the  interval  fell  into  possession. 
The  defendants  having  also  been  in  some  degree  remiss,  the 
bill  was  dismissed  without  costs,  upon  delivering  up  the 
agreement.^ 

2.  A.  was  proprietor  of  four  parts  in  seven  of  the  manor 
of  Glaston.     B.  treated  with   C,  who  was  empowered  to 

1  Allen  V.  Greene,  19  Ala.  34.  *  Haj-es  v.  Caryll,  1  Bro.  P.  C.  126  ; 

2  Thompson  v.  Dnlles,  5  Rich.  Eq.     S.  C.  5  Vin.  Abr.  538. 

370.  ^  Spurrier  v.  Hancock,  4  Ves.  145. 

3  Barney  v.  Loper,  16  Barb.  629. 


GH.  XI.]       TIME  OF  PERFORMING  CONTRACTS.  187 

sell  this  manor  or  part  of-  it,  and  in  1697  contracted  with 
him  in  writing.  B.  lived  eight  years  afterwards,  and  during 
that  time  was  several  times  requested  by  C.  to  complete  the 
bargain,  and  pay  the  purchase-money,  but  B.  raised  objec- 
tions to  the  title,  and  would  not  proceed  further  in  his  pur- 
chase until  they  were  cleared.  But  it  appeared  that  those 
scruples  were  only  to  shuffle  off  payment  until,  by  the  drop- 
ping of  some  lives,  his  bargain  would  be  bettered.  One  life 
dropped  in  C.'s  life,  and  two  since.  The  plaintiff,  after  his 
father's  death,  in  1706,  exhibited  his  bill  for  specific  perform- 
ance.    Dismissed,  with  costs.^ 

3.  A  bill  for  specific  performance  of  an  agreement  to  take 
a  lease,  for  forty-two  years,  of  iron  and  coal  mines  and 
machinery,  for  the  purpose  of  trade,  was  dismissed,  on 
account  of  delay  on  the  part  of  the  lessor  to  make  out  his 
title,  and  to  give  possession  at  the  time  stipulated.^ 

4.  In  an  agreement,  by  a  tenant  at  will  of  a  public-house, 
for  the  sale  of  the  possession,  trade,  and  good- will  of  the 
house,  at  a  fixed  sum,  and  the  stock  and  furniture  at  a  valu- 
ation, one  of  the  terms  being,  that  possession  should  be 
taken  and  the  money  paid  on  a  certain  day,  time  was  held 
of  the  essence  of  the  contract ;  and  a  purchaser,  who  was 
not  in  a  condition  to  fulfil  his  part  of  the  contract  on  that 
day,  cannot  compel  a  specific  performance,  though  he  was 
ready  on  the  following  day.  (It  was  doubted,  however, 
whether  a  Court  of  Equity  will  enforce  the  performance  of 
a  contract  for  the  purchase  of  a  subject-matter,  of  which 
the  good-will  of  a  public-house,  unconnected  with  any  fixed 
interest  in  the  premises,  forms  the  principal  part.'^) 

5.  An  estate  was  sold  by  auction,  the  purchase  to  be  com- 
pleted in  two  months.  The  buyer  died  soon  afterwards, 
and  suits  were  instituted,  both  in  the  Spiritual  Court  and 
the  Court  of  Chancery,  respecting  his  affairs,  which  pre- 
vented the  completion  of  the  contract.     Four  or  five  years 


'  Coward  v.  Odingsale,   2  Eq.    Ca.        ^  Parkeri?.  Frith,  1  Sim.  &  Stu.  199. 
•Abr.  688,  pi.  5.  ^  Coslake  v.  Till,  1  Russ.  376. 


188  LAW    OF    VENDORS    AND  "pURCnASERS.  [CH.  XI. 

after  the  sale,  the  vendor  filed  his  bill  to  have  the  contract 
rescinded.  The  affairs  of  the  buyer  still  remaining  unsettled, 
the  Court  rescinded  the  contract,  and  gave  tiie  plaintiff  his 
costs  out  of  the  deposit.^ 

6.  In  May,  1837,  the  defendant,  being  about  to  raise  his 
dam  to  a  height  that  would  overflow  part  of  the  farm  of  the 
plaintiff,  agreed  to  buy  his  land,  and  to  pay  for  it  on  the  1st 
of  April,  1838,  when  the  deed  was  to  be  delivered.  It  was 
further  agreed,  that,  as  a  compensation  for  damages  the 
plaintiff  might  sustain  previous  to  the  conveyance,  he  should 
use  and  occupy  certain  lands  of  the  defendant.  In  the  fall 
of  1837,  the  defendant  raised  his  dam,  and  the  plaintifli  took 
possession  of  the  lands.  In  October,  1838,  the  plaintiff 
tendered  his  deed,  but  the  defendant  did  not  pay,  and  the 
deed  was  not  delivered.  In  1844,  the  plaintiff  filed  his  bill, 
praying  that  the  defendant  might  be  decreed  to  pay  by  a . 
day  to  be  fixed ;  otherwise  the  agreement  to  be  cancelled, 
and  the  defendant  du'ected  to  lower  his  dam.  Ordered,  that 
the  defendant  pay  by  a  day  fixed,  or  that  the  agreement  be 
cancelled ;  but  an  order  to  lower  the  dam  was  denied.^ 

7.  Agreement  in  March,  1810,  to  purchase  a  farm,  and  to 
pay  $250  in  one  year,  one  third  of  the  residue  in  two  years, 
and  the  other  two  thirds  in  two  successive  years.  On  re- 
ceiving the  payments,  the  vendor  to  give  a  deed  ;  upon 
failure  in  the  payments  or  either  of  them,  the  agreement  to 
be  void.  The  vendee  took  possession,  and  made  improve- 
ments, but  made  no  payments  ;  and  the  vendor,  in  October, 
1813,  supposing  the  agreement  void  or  abandoned,  sold  the 
farm  to  a  third  person.  The  vendee  files  a  bill  in  1814,  on  a 
tender  of  the  whole  purchase-money,  for  specific  perform- 
ance.    Bill  dismissed,  with  costs.^ 

8.  Parol  agreement,  in  December,  1833,  for  the  purchase 
of  lands,  which  the  vendor  was  to  purchase  of  an  Indian 
reserve.     Under  the  contract,  the  vendor  received  a»  horse 


1  Mackrcth  v.  Marlar,  I  Cox,  259.  »  Benedict  v.  Lynch,   1   Johns.  Ch. 

2  Stevens  v.  Ryerson,  2  Halst.  Ch.  477.      370. 


CH.  XI.]        TIME  OP  PERFORMING  CONTRACTS.  189 

valued  at  $100,  and  was  also  to  receive  $100  in  December, 
1834,  1835,  and  1836,  respectively.  After  the  vendor  pur- 
chased, the  vendee  entered  and  made  improvements,  but 
made  no  offer  of  payment,  until  January  or  February,  1835, 
(except  an  offer  of  the  notes  of  a  third  person,  due  several 
years  after  the  agreement  was  made  ;)  and  the  contract,  as 
disclosed  by  the  bill,  was  uncertain  and  contradictory,  and 
altogether  disproved  by  the  answer  and  proof.  Held,  a  bill 
for  specific  performance,  brought  by  the  vendee,  should  be 
dismissed,  with  costs  ;  but  without  prejudice  to  an  action  at 
law,  or  suit  in  equity,  to  recover  back  money  or  property 
delivered  upon  the  faith  of  the  agreement.' 

9.  There  is,  however,  a  class  of  cases,  which  hold  the  doc- 
trine, that  the  time,  at  which  a  contract  is  to  be  performed,  is 
not  essential  in  equity,  as  at  law,-  [a)  unless  the  parties  have 
expressly  agreed  that  it  should  be  so  regarded,  or  unless  it 
follows  from  the  nature  and  purposes  of  the  contract,^  and 
that  relief  against  the  lapse  of  time  is  in  the  discretion  of  the 
Court,  upon  the  circumstances.^  Thus,  upon  a  bill  in  equity, 
to  enforce  specific  execution  of  a  contract  to  convey  lands,  if 
the  complainant  has  made  large  and  valuable  improvements, 
with  the  knowledge  and  acquiescence  of  the  defendant,  the 
Court  will  decree  specific  execution,  upon  payment  of  the 
agreed  price  with  interest,  although  payment  has  been  de- 
layed for  an  unreasonable  time.^  So,  the  execution,  by  the 
vendor,  of  a  mortgage  on  the  premises,  after  the  agreement 
to  sell,  is  not  a  ground  to  avoid  the  contract,  provided  it  be 
removed  before  he  is  called  on  to  make 'title,  or,  at  least, 
before  the  bill  for  specific  execution  is  filed.^  So,  although  a 
purchaser  of  an  estate  in  fee  will  not  be  compelled  to  take  a 

'  Goodwin  v.  Lyon,  4  Port.  Eq«297.  *  Wells  v.  Wells,  3  Ired.  596. 

2  Radcliffe   v.    Warrington,   12   Ves.  ^  Mason  v.  Wallace,  4  McLean,  77. 

376;   Harrington   v.   Wheeler,   4    Ves.  (See  p.  191.) 

686 ;  Hearne";;.  Tenant,  1.3  Ves.  287.  "  Tiernan  v.  Roland,  15  Penn.  429. 

^  Jones  V.  Eobbins,  29  Maine,  351. 

(a)  It  will  be  seen,  that  in  some  cases  the  same  principle  has  been  adopted 
by  courts  of  law. 


100  LAW   OF   VENDORS  AND   PURCnASERS.  [CII.  XI. 

life-estate  only,  nor  an  estate  in  which  the  vendor  luul  no  in- 
terest, as  owner,  at  the  time  of  sale  ;  yet,  where  the  seller  has 
an  equitable  estate  under  articles  of  agreement,  and  a  right  to 
acquire  the  legal  title,  and  actually  acquires  it,  after  the  sale, 
but  before  any  laches  can  properly  be  imputed  to  him,  he  may 
compel  a  specific  performance.^  So,  merely  undertaking  to 
deliver  an  abstract  and  possession  at  a  particular  time  does 
not  make  it  of  the  essence  of  a  contract.^  So,  where  a  ven- 
dee agrees  to  pay  the  vendor  the  balance  of  the  price,  on  his 
executing  a  bond  to  complete  the  title,  and  cause  £^  con- 
veyance to  be  made ;  time  is  not  of  the  essence  of  such 
a  contract.  Nor  is  it  a  defence  to  an  action  on  the  agree- 
ment, that  the  bond  was  not  tendered  to  the  obligee,  till  two 
years  after  the  time  when  the  money  was  to  be  paid  by  him.^ 
So,  specific  performance  will  be  decreed,  where  the  vendee 
tenders  the  whole  purchase-money  at  the  time  the  second 
instalment  falls  due,  though  he  failed  to  pay  the  first  instal- 
ment at  the  proper  time.*  So,  the  fact,  that  the  vendor  has 
suffered  the  purchaser  to  remain  in  possession,  and  received 
payments  from  him,  from  time  to  time,  down  to  a  short  period 
previous  to  the  filing  of  a  bill  by  the  purchaser  for  specific 
performance,  is  strong  evidence  that  neither  party  intended 
to  make  the  time  an  essential  part  of  the  contract ;  and  the 
vendor  will  not  be  allowed  to  insist  upon  a  forfeiture,  on  that 
ground.  So,  although  he  is  unable  to  make  a  title  to  the 
whole  of  the  land,  he  will  be  required  to  perform  his  contract, 
so  far  as  it  can  be  performed,  notwithstanding  the  lapse 
of  time,  unless  he  has  been  prejudiced  by  the  delay .^  So, 
though  the  vendor  does  not  produce  his  deeds,  or  tender  a 
conveyance,  within  the  time  limited  by  the  articles,  the  Court 
will  still  decree  a  sale.^  So,  a  ^pse  of  twenty-one  days, 
from  the  time  allowed  to  a  lessee  to  purchase  a  lot,  does  not 
forfeit  his  right ;  a  reasonable  excuse  being  given  for  such 

1  Tiernan  v.  Roland,  15  Penn.  429.  *  Gibbs  v.  Champion,  3  Ham.  335. 

2  Boehra  v.  Wood,  1  Jac.  &  Walk.  ^  Voorhces  v.  De  Meyer,  2  Barb.  37. 
419.  6  Gibson  17.  Patterson,"  1  Atk.  12. 

3  Willett  V.  Clarke,  10  Price,  207. 


en.  Xr,]  TIME   OF   PERFORMING    CONTRACTS.  191 

delay,  viz.,  the  death  of  the  obligee,  the  refusal  of  the  admin- 
istrator to  receive  the  purchase-money,  and  non-residence  of 
some,  and  infancy  of  others  of  the  heirs.^  So,  where  posses- 
sion has  been  taken,  and  valuable  improvements  made,  the 
acquiescence  of  the  vendor  may  be  presumed  ;  and  a  delay 
of  payment  for  two  years,  under  such  circumstances,  where 
the  vendor  sustains  no  damage,  which  interest  will  not  com- 
pensate, will  not  bar  a  bill  for  specific  execution.^  So  specific 
performance  of  an  agreement  for  the  sale  of  an  annuity,  to 
commence  from  the  date  of  the  agreement,  and  to  continue 
for  three  lives,  to  be  named  by  the  grantee,  was  decreed, 
where  the  lives  had  not  been  named,  the  delay  having  been 
occasioned  by  the  grantor.^  So,  by  the  terms  of  an  auction 
sale,  the  title-deeds  were  to  be  produced  by  a  certain  day,  and 
were  not  then  ready,  but  the  purchaser  received  them  after- 
wards, without  objection.  Held,  he  could  not  afterwards,  on 
disliking  the  title,  object  to  the  delay ."^  So,  where,  by  the 
terms  of  an  auction,  the  sale  is  to  be  completed  by  a  certain 
day ;  yet,  if  neither  party  takes  any  step  to  quicken  the  other, 
till  it  becomes  impossible  to  execute  the  agreement  by  the 
day ;  the  time  is  waived,  and  equity  will  interfere,  to  prevent 
the  purchaser  from  taking  advantage  of  it  at  law.^ 

10.  By  the  terms  of  a  sale,  the  purchaser  was  to  pay  part 
of  the  price  on  signing  the  agreement,  and  the  rest  on  com- 
pletion of  the  purchase  "on  the  11th  of  October,  from  which 
time  the  purchaser  was  to  be  entitled  to  the  rents  and  profits," 
but  if  the  purchase  should  not  be  completed  by  the  11th  of  Oc- 
tober, he  should  pay  interest  until  such  completion.  The  ven- 
dor to  deliver  an  abstract  of  title  within  fourteen  days  from 
the  sale,  and  deduce  a  good  title.  The  sale  was  on  July  9th, 
and  the  abstract  delivered  on  the  14th.  It  then  appeared, 
that  there  were  two  mortgages  on  the  estate,  and  the  mort- 
gagees had  not  received  the  usual  six  months'  notice  of 

1  Page  V.  Hughes,  2  B.  Mon.  441.  ^  Pritchard  v.  Ovey,  1  Jac.  &  Walk. 

2  Mason   v.    Wallace,   3    M'L.    148.     396. 

(See  p.  189.)  ■*  Smith  v.  Burnham,  2  Anstr.  527. 

^  Jones  V.  Price,  3  Anstr.  924. 


102  LAAV   OF   VENDORS  AND   PURCEASERS.  [cil.  XI. 

redemption ;  that  some  of  them  were  dead,  and  letters  of 
administration  de  bonis  non  were  requisite  in  the  case  of  one 
of  them ;  also  that  a  deed  of  declaration  of  trust  by  parties 
beneficially  interested  in  the  mortgage  was  required.  For 
these  and  other  causes,  a  conveyance  could  not  be  made  by 
the  11th  of  October,  and  the  purchase  was  completed  in  the 
following  April.  Held,  the  vendor  did  deduce  an  abstract, 
and  show  a  good  title.^ 

11.  So  a  delay,  amounting  to  apparent  negligence,  may  be 
explained  ;  and,  under  special  circumstances,  as  where  there 
is  a  difficulty  about  the  title,  presents  no  bar  to  relief.  Bill 
for  specific  performance.  The  defendant,  in  1822,  agrees 
with  the  plaintiff"  to  sell  him  certain  real  estate  for  $600,  "  to 
be  paid  in  one  year,  upon  receiving  a  good  title."  The 
plaintiff  enters,  but  is  soon  after  ousted  of  part  of  the  prem- 
ises by  one  claiming  under  an  adverse  title  ;  upon  which  the 
defendant  brings  ejectment  against  the  latter ;  and  the  con- 
tract remains  unexecuted  until  1829,  when  the  plaintiff  ten- 
ders the  money  to  the  defendant,  and  demands  a  deed.  Held, 
the  plaintiff  was  not  barred  by  mere  lapse  of  time.^  So,  A. 
contracts  for  the  purchase  of  an  estate,  and  is  let  into  pos- 
session. The  estate  being  greatly  incumbered,  A.  pays  off 
some  of  the  incumbrances.  Great  delay  is  used  on  the  part 
of  the  vendor  in  clearing  other  incumbrances,  and  making 
good  the  title.  Held,  the  purchaser  shall  not  for  that  reason 
be  discharged  from  his  contract.^ 

12.  The  owner  of  land  made  a  written  agreement  to  sell 
it  for  $300,  one  third  to  be  paid  down,  and  the  residue  in 
one  and  two  years,  with  interest ;  possession  to  be  delivered 
immediately ;  and,  if  the  purchaser  should  make  default  in 
either  of  the  payments,  the  vendor  to  be  discharged,  and  the 
purchaser  to  forfeit  all  previous  payments,  and  deliver  up 
possession.  The  vendee  took  possession,  made  valuable  im- 
provements, and  paid  the  first  two  instalments  at  the  times 


1  Savory  u.  Underwood,  28  Eng.  Law        ^  King  v.  Moiford,  1  Saxt.  Ch.  274. 
&  Eq.  152.  3  Smith  v.  Dolman,  6  Bro.  P.  C.  291. 


CH.  XI.]  TIME   OF   PERFORMING    CONTRACTS.  193 

specified.  He  then  assigned  his  contract  to  the  complainant, 
who  took  possession,  but  did  not  make  the  last  payment  at  the 
day  specified ;  nor  was  he  called  on  for  payment,  nor  did  he 
offer  a  conveyance  upon  payment ;  but,  a  few  days  after- 
wards, he  tendered  the  money,  and  demanded  a  conveyance. 
Held,  time  was  not  of  the  essence  of  the  contract,  and  the 
complainant  was  entitled  to  specific  performance.^ 

13.  Nor  will  the  circumstance,  that,  at  the  time  of  filing  a 
bill  for  specific  performance,  the  vendor  is  unable  to  make 
a  title  to  the  whole  of  the  land  sold,  relieve  him  from  a 
performance  of  his  contract,  so  far  as  it  can  be  j)erformed^ 
any  more  than  it  would  have  done  at  the  time  the  purchase- 
money  became  due ;  unless  something  has  occurred  since 
that  time,  by  reason  of  the  purchaser's  delay,  which  has 
placed  the  vendor  in  a  worse  situation  than  he  would  have 
been  in,  had  he  been  called  upon  to  perform  his  contract  at 
the  time  stipulated.^ 

14.  The  same  principle,  that  time  is  not  of  the  essence  of 
the  contract,  has  also  received  other  applications.  Thus 
if,  on  a  bill  for  specific  performance  by  the  vendor,  a  good 
title  can  be  made  before  or  when  the  cause  comes  on  upon 
further  directions,  specific  performance  will  be  decreed.  So, 
if  a  title  is  procured  before  the  report,  or  before  the  final 
decree;^  more  especially  where  no  injury  has  arisen  from 
the  delay.*  So,  where  the  parties  have  not  made  time  of 
the  essence  of  the  contract,  and  the  delay  is  not  the  fault 
of  the  vendor,  but  is  occasioned  by  the  state  of  the  title, 
unknown  at  the  sale  ;  the  invariable  inquiry  of  the  Chan- 
cellor is,  whether  the  vendor  is  able  to  convey  at  the  hearing  J' 
So,  a  purchaser  cannot  insist  on  being  discharged  uppn  a 
report  of  defective  title,  if  capable  of  being  niade  good 
within  a  reasonable  time ;  as  to  which  the  vendor  will  be 

• 

1  Edgarton  u.  Peckham,  1 1  Paige,  352.  net,  &c.  v.   Carey,  3   Brown  Ch.  390; 

2  Voorhees  v.  De  Meyer,  2  Barb.  37.  Hepburn  v.  Auld,  5  Craneh,  262. 

3  Paton   V.    Rogers,   6   Madd.    256;  *  Dutch,  &c.  v.  Mott,  7  Paige,  78.  But 
Mortlock  V.  Buller,  10  Ves.  292 ;  Ben-  see  Nodine  v.  Greenfield,  7  Paige,  545. 


5  Cotton  V.  Ward,  3  Monr.  313. 


17 


194  LAW    OF   VENDORS    AND    PURCHASERS.  [CH.  XI. 

put  under  tcrms.^     Tlius,  in  some   cases,  the  vendee  may 
claim  costs,  if  not  himself  in  fault.^     And  tiie   purchaser 
may  claim- interest  upon  the  purchase-money  paid,  from  the 
time  of  demanding  a  deed.^     So,  relief  is  granted  against 
forfeiture  of  the   deposit,  upon  putting  the    other  party  in 
the  same  position,  as  if  the   contract  had  been  performed 
at  the  time  agreed.*     So,  specific  performance  was  decreed ; 
the  abstract,  though  delivered  very  late,  and  under  a  notice 
that  the  vendee  would  insist  on  his  deposit,  with  interest,  if 
the  title  should  not  be  made  out,  and  possession  delivered, 
by  the  time  of  payment,  having   been  received  and  kept 
without  objection  ;  and  the  vendee,  upon  the  construction 
and  the  cu'cumstances,  not  being  entitled  to  insist  on  time 
as  the  essence  of  the  contract.     So,  where  the  vendor  de- 
clines executing  the  contract,  upon  the  ground  that  he  is 
unable  to  give  a  good  title,  and  the  purchaser  files  his  bill 
for  specific  performance,  or  to  rescind,  if  the  defendant  is 
able  to  give  a  good  title  at  the  time  of  the  decree,  the  com- 
plainant will  be  compelled  to  accept  it.^     But  though,  in 
general,  the  vendor  may  compel  specific  performance  if  able 
to  make  a  title  at  the  hearing ;  yet,  where  he  is  bound  by 
the  contract  to  convey  immediately,  but  asks  for  an  injunc- 
tion against  any  transfer  of  the  defendant's   property,  by 
which  he  was  to  be  paid,  or  for  a  receiver  of  such  property ; 
he  must  show  that  he  has  a  present  ability  to  fulfil  the  con- 
tract ;  not  merely  that  he  may  possibly  be  able  to  perform 
at  the  hearing.^ 

15.  Upon  a  bill  filed  by  a  vendor  for  specific  performance, 
it  appeared  that  he  could  make  a  good  title  before  the  com- 
mencement of  suit,  but  did  not  show  a  good  title  to  the 
purchaser  until  afterwards.  Specific  performance  decreed, 
but  the  purchaser  to  recover  costs.'^ 

16.  Agreement  beUveen  vendor  and  purchaser,  that  the 

1  Coffin  V.  Cooper,  14  Ves.  205.  ^  Seton  v.  Slade,  7  Ves.265 ;  Cotton 

2  Dutch,  &c.  V.  Mott,  7  Paige,  78.  v.  Ward,  3  Monr.  304,  313. 

■^  Pierce  v.  Nichols,  1  Paige,  244.  *»  Baldwin  v.  Salter,  8  Paige,  473. 

*  Moss  V.  Mattliews,  3  Ves.  279.  "^  Townshend   v.   Cliampernowae,  3 

Y.  &  Coll.  505. 


CH.  XI.]  TIME   OF   PERFORMING    CONTRACTS.  195 

purchaser  should  be  entitled  to  the  rents  on  the  1st  May, 
1813,  or  from  such  time  as  the  purchase  should  be  com- 
pleted. An  abstract  of  title  was  afterwards  furnished  to  the 
purchaser,  and  the  title  appeared  to  be  satisfactory  to  him  • 
and  in  May,  1816,  he  sent  the  vendor  a  draft  conveyance  for 
his  approval,  which  was  returned,  approved,  in  July,  1816. 
Afterwards,  the  purchaser,  on  the  suggestion  of  counsel, 
made  several  objections  to  the  title,  and  delayed  completing 
the  purchase.  In  November,  1817,  the  vendor  filed  his  bill 
for  specific  performance,  and  the  master  found,  that  the 
vendor  could  make  a  good  title  before  the  bill  was  filed,  but 
did  not  show  a  good  title  to  the  purchaser  till  the  20th 
January,  1825.  Held,  upon  a  decree  for  specific  performance, 
that  the  proper  date  of  the  conveyance  was  the  20th  Jan- 
uary, 1825.1  # 

17.  Though  equity  will  decree  specific  performance  of  a 
contract  for  the  sale  of  land,  if  the  vendor  is  able  to  make  a 
good|dtle  at  any  time  before  decree ;  the  dismission  of  the 
bilMS  a  bar  to  a  new  biU  for  the  same  object.^ 

18.  The  inability  of  the  vendor  to  make  a  good  title,  at 
the  time  of  decree,  though  a  sufficient  ground  for  refusing  a 
specific  performance,  will  not  authorize  a  Court  of  Equity 
to  rescind  the  agreement,  where  the  parties  have  an  adequate 
remedy  at  law  for  its  breach.^ 

19.  "Where  the  report  is  in  favor  of  the  title,  the  Court, 
on  allowing  exceptions  to  it,  will  give  the  vendor  a  reason- 
able time  to  remove  the  objection,  although  the  exceptions 
and  further  directions  were  set  down  to  come  on  together.* 

20.  All  objections  to  a  title  were  to  be  taken  within 
twenty-one  days  from  delivery  of  the  abstract,  or  to  be 
deemed  waived,  and  time  was,  in  that  respect,  to  be  consid- 
ered the  essence  of  the  contract.  Held,  that  the  twenty-one 
days  did  not  begin  to  run,  until  a  perfect  abstract  had  been 
delivered.^ 

'  Townshend   v.    Champernowne,   3  *  Portraan  v.  Mill,   1   Rnss.  &  Myl. 

Y.  &  Coll.  505.  696. 

2  Hepburn  v.  Dunlap,  I  Wheat.  179.  ^  Hobson  v.  Bell,  2  Beav.  17. 
8  Ibid. 


196  LAW   OF   VENDORS    AND   PURCnASERS.  [CH.  XI. 

21.  Although  time  was  originally  an  essential  part  of  the 
contract,  it  may  become  unessential  by  the  subsequent  con- 
duct of  the  parties,  (a)     Thus  the  neglect  of  the  obligee  in 
a  bond  for  conveyance,  to  pay  an  instalment  at  the  time 
agreed,  does  not  cause  a  forfeiture,  if  the  obligor  has  not 
regarded  time  as  of  the  essence  of  the  contract ;  and  a  subse- 
quent receipt  of  payment  is  a  waiver  of  any  forfeiture  for 
this  cause.i     So,  the  delay  of  one  party  in  fulfilling  a  con- 
tract affords  no  ground  for  equity  to  relieve  the  other  from 
the  consequences  of  the  delay,  where  the  latter  has  assented 
to  and  acquiesced  in  such  delay .^    So,  a  defendant  may  plead, 
that,  by  a  subsequent  agreement,  not  under  seal,  made  be- 
fore breach,  the  time  for  deducing  title  had  been  enlarged, 
and  that  he  was  ready  to  deduce  it  within  the  enlarged  time. 
So,  that,  in  consideration  the  defendaift  would  deduce  a 
good  title  and  convey,  (after  breach,)  the  plaintiff  agreed  to 
accept  such  title  and  conveyance  at  a  later  day.^     So,  it  has 

'  Linscott  V.  Buck,  33  Maine,  530 ;        ^  Rippingall  v.  Lloyd,  2  Ne^fc  M. 
Hudson  V.  Biirtram,  3  Madd.  440.  410. 

2  Sloo  V.  Law,  1  Blatch.  512. 


(a)  It  is  said,  time  may  be  of  the  essence  of  the  contract  in  equity. 
Exact  punctuality  may  be  of  great  importance  to  the  interests  of  a  con- 
tracting party  in  many  situations.  In  some,  it  is  obvious  from  the  state  of 
the  property  and  other  circumstances.  In  others,  we  do  not  doubt  that  the 
instrument  may  be  so  framed  as  to  show  that  it  is  a  substantial  part  of  the 
contract.  In  those  cases,  the  Court  can  no  more  dispense  with  it  than  any 
other  -vital  provision.  But  the  parties  themselves  may ;  and  it  is  in  that  sense 
true  that  time  is  not  essential,  but  immaterial,  when  comparing  its  effect  in 
that  court  with  that  at  law. 

Default  in  respect  to  time  is  not  a  bar  of  itself,  except  in  peculiar  cases  ; 
but  is  only  evidence  with  other  things  of  abandonment,  and,  of  course,  may 
be  rebutted.  Time  may  in  all  cases  be  made  essential,  but  where  it  is,  it 
does  not  follow  that  it  is  necessarily  conclusive  in  equity,  as  it  is  at  law.  In 
equity,  time  may  be  waived  by  a  party,  as  may  any  other  stipulation  intro- 
duced for  his  benefit.  A  failure  to  avail  himself  of  it,  on  the  first  fit  occa- 
sion, and  before  or  when  the  other  party  begins,  after  a  default,  to  act 
again  on  the  agreement,  may  amount  to  such  waiver.  Falls  v.  Carpenter, 
1  Dev.  &  Batt.  Eq.  277. 


en.  Xr.]        TIME  OF  PERFORMING  CONTRACTS.  197 

been  sometimes  held,  that  the  time  of  performance  of  the 
condition  of  a  bond  may  be  enlarged  by  a  parol  agreement. 
Thus,  where  certain  acts  were  done  by  the  obligor,  amount- 
ing to  a  substantial,  though  not  literal  performance  ;  held,  that 
evidence  was  admissible  of  a  parol  agreement  of  the  obligee, 
to  waive  any  further  performance.^  So,  specific  performance 
of  an  agreement  to  purchase  may  be  decreed,  after  consid- 
erable delay;  if  the  vendee  has  not  demanded  his  deposit, 
or  shown  a  determination  not  to  proceed.^ 

22.  The  plaintiff,  on  the  26th  of  April,  agreed  to  purchase 
a  manor  from  the  defendant,  to  complete  the  purchase  ac- 
cording to  certain  conditions,  and,  upon  the  purchase  taking 
place,  to  sign  an  agreement  for  payment  of  the  purchase- 
money  on  or  before  the  24th  of  July.  It  was  also  agreed, 
that,  on  completion  of  the  purchase,  the  purchaser  should 
be  entitled  to  the  rents  and  profits  of  such  parts  of  the 
estate  as  were  let,  from  the  24th  of  June.  The  day  of  com- 
pleting the  purchase  was,  for  the  convenience  of  the  pur- 
chaser, altered  from  the  24th  of  June  to  the  24th  of  July. 
A  tenant  of  a  copyhold  parcel  of  the  manor  having  died 
seised  thereof  in  1836,  the  admittance  of  the  parties  entitled 
to  be  admitted  was  postponed  from  time  to  time,  at  their 
request,  and  did  not  take  place  till  the  1st  of  July,  and  in 
December  the  fine  was  paid  to  the  defendant.  The  convey- 
ance of  the  manor  was  executed  in  August,  and  the  pur- 
chase money  paid  in  the  following  September.  Held,* an 
action  for  money  had  and  received  could  not  be  maintained 
to  recover  the  fine.^ 

23.  K  the  purchaser  demand  his  deposit  at  the  day,  and 
the  vendor  has  not  delivered  his  abstract,  and  also  neglects 
to  deliver  it,  until  after  an  action  brought  for  the  deposit ; 
this  is  evidence  of  an  abandonment  of  the  contract  by  the 


1  Fleming  v.  Gilbert,  3  Johns.  358  ;  ^  pjncker  v.  Curteis,  4  Bro.  329; 

Keating   v.  Price,  1   Johns.   Cas.    22;  ^  Lord  Hardwicker.  Lord  Sandys,  12 

Erwin  v.  Saunders,  1  Cow.  250.  Mees.  &  Wels.  761. 

17* 


198  LAW  OP  VENDORS  AND  PURCHASERS.       [CU.   XI. 

vendor ;  who  shall  not  be  entitled  afterwards  to  a  specific 
performance.^ 

24.  Where  a  person  had  contracted  for  the  purchase  of  an 
estate  jfrom  trustees,  under  a  deed  of  release  and  assignment 
for  the  benefit  of  the  creditors  of  a  trader,  upon  a  stipulation 
that  a  good  title  should  be  made  by  a  given  day,  and  that 
day  fell  within  the  period,  during  which  a  fiat  in  bankruptcy 
might  have  issued  against  the  trader ;  held,  he  was  in  the 
situation  of  a  purchaser,  who  had  waived  a  stipulation,  that 
time  should  be  of  the  essence  of  the  contract.^ 

25.  Agreement  for  sale  of  real  property.  If  the  residue  of 
the  purchase-money  is  not  paid  by  a  certain  day,  the  agree- 
ment shall  be  void  ;  and  the  vendors  may  resell.  The  money 
is  not  paid  on  the  day,  but  the  purchaser  retains  possession, 
giving  a  warrant  of  attorney  to  confess  judgment  in  eject- 
ment.    The  stipulation  as  to  time  is  waived.-^ 

26.  A  vendor  and  vendee  proceeded  in  the  treaty  beyond 
the  time  for  completing  the  contract.  The  vendor  having 
brought  an  action,  and  withdrawn  his  record,  not  having  got 
in  a  judgment  amounting  to  half  the  purchase-money ;  the 
Court  refused  an  injunction.* 

27.  A.  articles  to  buy  land,  and  pays  part  of  the  purchase- 
money  ;  afterwards,  he  enters  into  several  orders  of  Court,  to 
pay  the  residue  by  such  a  day,  and,  in  default  thereof,  to  give 
up  the  articles,  and  lose  what  he  had  before  paid.  The 
Ccfcrt  will  relieve,  though  these  orders  have  not  been  com- 
plied with.^ 

28.  Assumpsit.  The  declaration  alleged,  that  the  plaintiff 
was  possessed  of  a  house,  &c.,  for  the  residue  of  a  term  of 
six  years,  and  agreed  to  assign  the  lease  to  the  defendant  at 
a  certain  price,  and  give  possession  on  a  certain  day ;  and 
averred,  that  she  was,  firom  the  time  of  making  the  agree- 

1  Lloyd  V.  Collett,  4  Bro.  469.  *  Wood  v.  Bernal,  19  Vcs.  220. 

2  Hipwell  V.  Knight,  1  You.  &  C.  419.        &  Veraon  v.  Stephens,  2  P.  Wms.  66. 
8  Ex  parte  Gardner,  4  You.  &  Coll. 

503. 


CH.  XI.]        TIME  OF  PERFORMING  CONTRACTS.  199 

ment,  ready  and  willing  to  assign  her  interest  in  the  house, 
&c.  The  defendant,  in  his  pleas,  traversed  this  readiness 
and  willingness.  The  greater  part  of  the  house  was  destroyed 
by  fire  shortly  after  the  agreement,  and  before  the  time  for 
its  completion.  The  agreement  provided,  that  either  party 
making  default  should  pay  the  other  ,£500  as  liquidated 
damages.  After  the  making  of  the  -agreement,  but  before 
the  day  for  its  completion,  the  parties  agreed,  by  an  in- 
dorsement, to  enlarge  the  time  for  a  few  days.  Held,  this 
amounted  to  a  fresh  agreement.^ 

29.  Contract  for  the  sale  of  houses  ;  which,  from  defects  in 
the  title,  could  not  be  completed  on  the  day.  The  treaty, 
however,  proceeded,  upon  a  proposal  to  waive  the  objections 
on  certain  terms.  The  houses  being  burnt  before  a  con- 
veyance, the  purchaser  is  bound,  if  he  accepted  the  title; 
although  the  vendor  suffered  the  insurance  to  expire,  at  the 
day  on  which  the  contract  was  originally  to  have  been  com- 
pleted, without  notice.  A  reference  to  the  master  was  there- 
fore directed  to  inquire,  whether  the  proposal  M^as  accepted 
or  acquiesced  in  on  behalf  of  the  purchaser.^ 

30.  Where  a  vendee  of  land,  incumbered  by  mortgage  and 
judgment,  promised  in  writing  to  pay  one  of  the  vendor's 
creditors,  by  a  certain  day ;  held,  a  subsequent  parol  agree- 
ment, pointing  out  the  mode  in  which  the  title  should  be 
secured  to  the  vendee,  and  in  effect  carrying  the  contract 
into  execution,  but  postponing  the  day  of  the  creditor's  pay- 
ment, was  no  variance  of  the  original  agreement.^ 

31.  Conditions  of  sale  stipulated,  that  the  sale  should  be 
completed  on  a  certain  day ;  that  objections  to  the  title,  not 
made  within  twenty-one  days  from  delivery  of  the  abstract, 
should  be  considered  as  waived ;  and  that,  if  the  purchaser 
should  not  comply  with  the  conditions,  his  deposit  should  be 


1  Bacon  v.  Simpson,  3  Mees.  &  Wels.        ^  Reed  v.  Chambers,  6  Gill  &  Johns. 
78.  490. 

2  Paine  v.  Meller,  6  Ves.  .349. 


200  LAW  OP  VENDORS  AND  PURCHASERS.       [cH.  XI. 

forfeited,  and  the  vendor  be  at  liberty  to  resell.  The  pur- 
chaser did  not  deliver  his  objections,  until  several  weeks 
after  the  twenty-one  days,  and  after  the  day  appointed  for 
completing  the  purchase.  The  vendor's  solicitor,  however, 
received  them,  and  entered  into  a  long  correspondence  with 
the  purchaser  on  the  subject  of  them,  but  without  coming  to 
a  satisfactory  conclusion.  Finally,  the  vendor,  against  the 
purchaser's  objection,  resold  the  property  (but  at  a  less  price) 
to  one  who,  some  months  before  the  suit,  had  notice  of  the 
first  sale.  About  six  months  afterwards,  he  filed  his  bill 
against  the  two  purchasers  and  the  auctioneer.  The  Court 
held,  that  the  conditions  had  been  waived  by  the  solicitor, 
and  decreed  specific  performance,  with  a  reference  to  the 
master,  as  to  title ;  but  dismissed  the  bill,  with  costs,  as 
against  the  auctioneer,  who  denied  that  he  had  ever 
intended  to  part  with  the  deposit ;  and  without  costs,  as 
against  the  second  purchaser,  who  claimed  the  benefit  of 
his  contract,  if  the  Court  should  refuse  to  enforce  the 
plaintiff's.^ 

32.  But,  on  the  other  hand,  it  is  said,  although  courts  of 
equity  have  sometimes  interfered  in  favor  of  parties,  who 
were  not  ready  to  perform  their  agreement  at  the  day,  where 
the  time  appeared  not  essential,  yet,  when  a  further  indul- 
gence is  granted,  it  should  only  be  in  extreme  cases,  where  a 
party  has  failed  through  some  unforeseen  accident ;  or  where 
there  is  something  indicating  a  waiver  of  the  objection  by 
the  other  party.  It  is  for  the  parties  themselves  to  settle  the 
terms  of  their  agreement  ;  and  courts  have  no  power  to 
determine  which  of  those  terms  are,  and  which  are  not, 
material.  A  new  agreement,  extending  the  time  for  the  per- 
formance of  a  contract,  is  evidence  that  the  parties  to  such 
contract  deemed  the  time  material.^  So  it  has  been  held, 
that  parol  evidence  is  not  admissible,  to  enlarge  the  time, 
within  which  the  terms  of  a  written  agreement  for  the  sale 

1  Cutts  V.  Thodey,  13  Sim.  206.  2  Wiswall  v.  McGowa,  2  Bavb.  270. 


CH.  XI.]       TIME  OF  PERFORMING  CONTRACTS.  201 

of  land  were  to  be  complied  with.^  So,  also,  that  the  day 
provided  for  completion  of  the  purchase,  in  a  written  con- 
tract, cannot  be  waived  by  oral  agreement,  and  another  day 
substituted  in  its  place.^ 

33.  On  a  bill  for  specific  performance,  the  questions, 
whether  time  was  originally  of  the  essence  of  the  contract, 
and  whether,  being  so,  the  defendant  has  by  any  act,  waived 
it  as  a  ground  of  objection  to  the  performance,  are  questions 
depending  on  evidence,  and  not  to  be  decided  except  upon 
the  hearhig.^ 

34.  Where  an  agreement  in  writing  is  to  be  performed  on 
a  certain  day,  and  the  parties  agree  to  enlarge  the  time,  a 
declaration  on  the  day  stated  in  the  agreement,  though  the 
evidence  is  of  a  different  day,  will  support  the  action.* 

35.  In  many  cases,  notice  from  one  party  to  the  other,  or 
the  want  of  it,  determines  the  effect  of  lapse  of  time  upon 
the  contract.  Thus,  a  vendor,  having  notice  from  the  pur- 
chaser that  he  abandoned  his  contract,  did  not  file  his  bill  for 
specific  performance,  till  about  a  year  afterwards.  The  bill 
was  dismissed.^  So,  where  time  is  not  of  the  essence  of  the 
contract,  and  there  is  unnecessary  delay  by  one  of  the  parties 
in  completing,  the  other  has  a  right,  by  notice,  to  limit  the 
time,  and  upon  default  to  abandon  the  contract.''  But  the 
time  may  be  waived,  by  proceeding  in  the  purchase,  after 
the  expiration  of  the  time  fixed  by  the  notice.'^  So,  a  party 
who  covenants  to  convey  is  not  in  default,  until  the  other 
party  has  demanded  a  conveyance,  and,  after  waiting  a  rea- 
sonable time  to  have  it  drawn  and  executed,  unless  su,ch 
demand  was  absolutely  refused,  has  again  demanded  it.^ 
This  is  a  rule  not  of  pleading,  but  of  evidence.^ 

36.  A  bill  by  a  lessee,  for  specific  performance  of  an  agree- 
ment for  a  lease,  was  dismissed,  because  it  was  not  filed, 


1  Doar  V.  Gibbes,  1  Bailey,  Eq.  .?71.  ^  Watson  v.  Reid,  1  Rns.  &  Myl.  236. 

2  Stowell  V.  Robinson,  3  Bing.  N.  C  **  Taylor  v.  Brown,  2  Beav.  180. 
928.  ">  King  v.  Wilson,  6  Beav.  124. 

3  Levy  ?).  Lindo,  3  Mer.  81.  *  Lutweller  v.  Lumell,  12  Barb.  512. 
*  Thresh  v.  Rake,  1  Esp.  N.  P.  C.  53.  ^  Pearsoll  v.  Frazer,  14  Barb.  514. 


202  LAW   OP   VENDORS   AND   PURCnASERS.  [CH.  XI. 

until  more  than  two  years  after  tlie  defendant  had  given 
notice  to  the  plaintifi',  of  his  intention  not  to  perform  the 
contract,  on  account  of  the  latter  not  having  fulfilled  it  on 
his  part.^ 

37.  Bill  for  specific  performance.  The  plaintiff  agreed  to 
take  a  house  of  the  defendant  for  two  years.  Afterwards,  on 
the  4th  of  September,  1817,  he  agreed  to  buy  it  for  £25  paid 
down,  and  .£425  to  be  paid  on  the  25th  of  December,  on  or 
before  which  time,  the  conveyance  was  to  be  executed.  An 
abstract  was  delivered  on  the  20th  of  October,  and  after- 
wards, a  draft  of  the  conveyance,  with  the  abstract,  sent  to 
the  plaintifT,  with  a  note  of  the  defendant's  solicitor,  stating 
that  the  deeds  were  with  him,  and  desiring  to  hear  from  the 
plaintiff  if  any  objections  occurred  ;  and  many  ineffectual 
applications  were  made  to  see  the  plaintiff*.  A  notice  was 
served  on  the  plaintifT  on  the  22d  of  December,  that  the  de- 
fendant would,  on  the  23d,  24th,  and  26th,  attend  at  the  plain- 
tiff's house,  to  execute  the  conveyance,  and,  on  default,  he 
should  consider  the  plaintiff  as  refusing  to  proceed  in  the 
purchase,  and  act  accordingly.  On  the  2d  of  April,  1818,  the 
plaintiff  returned  the  abstract,  with  objections  to  the  title. 
On  the  13th,  the  defendant  distrained  on  the  plaintiff  for  rent. 
The  plaintiff  then  filed  this  bill.  Held,  the  defendant  should 
have  given  notice  that  he  considered  the  agreement  as  at  an 
end,  and  returned  the  X25  ;  and,  he  not  having  done  so,  the 
Court  directed  the  usual  reference  as  to  the  title.^ 

38.  Where  a  vendor  covenants  to  deduce  a  good  title  at 
A„  B.,  or  C,  on  or  before  a  certain  day,  a  plea,  that  he  was 
ready  to  deduce  a  good  title  at  that  time,  without  averring 
notice  to  the  covenantee,  at  which  place  he  would  be  ready, 
is  insufficient.  So  a  plea,  that,  by  a  subsequent  agreement 
not  under  seal,  made  before  breach,  the  time  had  been 
enlarged,  and  that  the  defendant  was  ready  within  the 
enlarged  time.  So,  a  plea,  that,  in  consideration  the  defend- 
ant would  deduce  a  good  title  and  convey,  (after  breach,)  the 

1  Heaphy  v.  Hill,  2  Sim.  &  Stu.  29.  2  Reynolds  v.  Nelson,  C  Madd.  18. 


CH.  XI.]  TIME    OF    PERFORMING    CONTRACTS.  203 

.plaintiff  agreed  to  accept  such  title   and  conveyance  at  a 
later  day.* 

39.  The  defendant  agreed  to  sell  his  interest  in  a  public- 
house  to  the  plaintiff,  &c.,  at  an  appraisement;  payment,  on 
taking  possession,  which  was  to  be  on  or  before  a  certain 
day.  The  plaintiff  paid  a  deposit ;  to  be  forfeited,  if  he- 
should  not  complete  his  part  of  the  agreement.  The  parties 
appointed  A.  and  B.  to  be  appraisers,  respectively,  as  agreed. 
On  the  day  appointed  for  executing  the  contract,  A.  and  B. 
met,  but  A.,  the  seller's  appraiser,  was  informed,  that  B.  could 
not  conveniently  on  that  day  complete  the  valuation,  but 
would  do  it  the  next  day ;  and  no  objection  was  then  made 
to  the  delay.  B.  went  to  the  seller's  premises  the  follow- 
ing day,  to  make  the  valuation,  but  the  seller  refused  to 
allow  him  so  to  do,  and  said  he  would  not  complete  the  con- 
tract. In  an  action  for  the  deposit,  held,  it  was  no  defence, 
that  the  contract  was  not  completed  on  the  day  mentioned, 
the  defendant  not  having  given  notice  that  he  should  insist 
upon  this  term  of  the  contract.^ 

.40.  Agreement  to  sell  a  piece  of  land  for  a  certain  price, 
payable  in  instalments,  the  deed  to  be  given  on  payment  of 
the  first  instalment.  Five  months  after  the  first  day  of  pay- 
ment, the  vendee  offered  the  money  due,  and  asked  to  show 
the  deed  to  his  counsel,  which  the  vendor  refused,  and,  in  a 
month  afterwards,  the  vendee  tendered  the  money  due,  with 
interest,  and  then  brought  an  action  of  ejectment,  in  the 
nature  of  a  bill  for  specific  performance.  Held,  as  time  did 
not  appear  to  be  of  the  essence  of  the  contract,  and  as  both 
parties  regarded  the  agreement  in  force  five  months  after  the 
time  fixed,  the  lapse  of  another  month,  as  there  was  no 
change  in  the  value  of  the  property,  did  not  extinguish  the 
vendee's  right.  If  the  vendor  had  considered  the  agree- 
ment at  an  end,  he  should  have  notified  the  vendee  of  the 
fact.3 

1  Rippingall  u.  Lloyd,  2  Nev.  &  Mann.  ^  Carpenter  v.  Blandford,  8  Barn.  & 
410.  Cress.  575. 

^  Remington  v.  Irwin,  14  Penn.  143. 


204  LAW    OF    VENDORS    AND    PURCHASERS.  [cu.  XI. 

41.  The  question  of  time  has  also  frequently  been  raised, 
in  connection  with  the  delivery  of  an  abstract  of  title.  Thus 
it  has  been  held,  that  merely  undertaking  to  deliver  an  ab- 
stract and  possession  at  a  particular  time  docs  not  make  it 
of  the  essence  of  a  contract.^ 

•  42.  Where  objections  to  title  are  to  be  considered  as 
waived,  unless  made  within  a  certain  time  after  delivery  of 
the  abstract,  it  has  been  doubted  whether  that  condition  can 
be  insisted  on,  if  the  abstract  is  very  defective.^ 

43.  The  defendant,  a  purchaser  of  a  public-house,  insisted 
that  time  was  of  the  essence  of  the  contract,  and  that  the 
abstract  had  not  been  delivered  within  the  time  agreed  on. 
A  reference,  without  prejudice,  was  made,  on  motion,  as  to 
the  title,  and  when  it  was  first  shown.^ 

44.  An  agreement  for  the  purchase  of  an  estate  stipulated, 
that  an  abstract  of  title  should  be  delivered  immediately, 
and,  if  the  contract  was  not  completed  by  a  given  day,  the 
purchaser  be  released.  The  abstract  was  not  immediately 
delivered,  but  communications  on  the  subject  of  the  title 
were  continued  between  the  parties,  until  the  time  limited 
by  the  .contract  had  expired.  Held,  the  stipulation  as  to 
time  was  waived  by  the  purchaser."*  So  a  purchaser  can- 
not abandon  a  contract,  on  the  ground  of  the  vendor  not 
having  perfected  the  title  within  a  reasonable  time,  where 
the  former,  who  was  in  possession,  had  been  aware  from  an 
early  period  of  the  treaty,  that  there  was  some  objection  to 
the  abstract,  but  has  nevertheless  continued  to  negotiate 
down  to  a  recent  period,  and  then  on  a  sudden  (a  fortnight 
after  the  last  act  of  negotiation)  notifies  the  vendor  that  he 
abandons  the  contract.  In  such  case,  an  injunction  will  be 
granted,  to  stay  an  action  at  law  for  the  purchase-money,  on 
motion,  almost  as  of  course  ;  and,  if  the  case  were  made  out, 
it  would  be  sufficient  on  the  hearing.^ 

45.  The  abstract,  though  delivered  very  late,  and  under  a 

1  Boehint;.  Wood,  lJac.&  Walk.  419.  *  Hipwell  v.   Knight,  1  You.  &  Col. 

2  Cutts  V.  Thodcy,  13  Sim.  206.  419. 

^  Foxlowe  V.  Amcoats,  3  Beav.  496.  ^  Warder  v.  Jeffery,  4  Price,  294. 


CH.  XI.]  TIME   OF  PERFORMING   CONTRACTS.  205 

notice  that  the  vendee  would  insist  on  his  deposit,  with  in- 
terest, if  the  title  should  not  be  made  out  and  possession 
delivered,  by  the  time  of  payment,  was  received  and  kept 
without  objection  ;  the  vendee,  upon  the  construction  and 
circumstances,  not  being  entitled  to  insist  on  the  time,  as 
of  the  essence  of  the  contract  ;  specific  performance  was 
decreed.^ 

46.  July  22d,  an  estate  was  put  up  at  auction.  By  the 
conditions  of  sale,  an  abstract  of  title  was  to  be  furnished 
within  seven  days,  upon  demand ;  all  objections  considered 
as  waived,  unless  made  within  eight  days  thereafter ;  and  the 
purchase  completed  August  8th.  July  24th,  the  solicitor  of 
the  purchaser  called  for  the  abstract.  The  land  being  mort- 
gaged, and  the  mortgagee  abroad,  the  abstract  was  delayed 
till  August  3d.  The  purchaser  thereupon  claims  to  rescind 
the  sale,  and  brings  ah  action  for  the  deposit ;  and  the  vendor 
files  a  bill  for  spe  ific  performance,  to  which  the  defendant 
demurs.  Held,  the  time  of  delivery  of  the  abstract  was  not 
of  the  essence  of  the  contract,  and  the  demurrer  was  over- 
ruled.2 

47.  Questions  have  sometimes  arisen,  as  to  the  effect 
upon  the  contract  of  a  deterioration  in  the  value  of  the 
property,  arising  from  lapse  of  time.  Upon  this  subject  it  is 
held,  that  deterioration  of  the  estate,  arising  from  delay  in 
completing  the  purchase,  is  not  a  ground  for  rescinding  the 
contract,  but  may  be  the  subject  of  an  allowance  to  the 
purchaser."^ 

48.  The  amount  of  deterioration,  pending  a  suit  for  s'pecific 
performance,  having  been  ascertained  by  an  issue,  the  pur- 
chaser was.  allowed  it  out  of  his  purchase-money,  which  he 
had  paid  into  Court  under  an  order ;  with  interest  from  the 
time  when  he  paid  in  his  money.* 

49.  The  completion  of  a  contract  being  delayed  for  three 


1  Seton  V.  Slade,  7  Ves.  265.  ^  Lord  v.   Stephens,  1  You.  &  Coll. 

2  Roberts  v.  Berry,  17  Eng.  Law  &    222. 

Eq.  400.  ■•  Ferguson  v.  Tadman,  1  Sim.  530. 

18 


206  LAW  OF  VENDORS  AND  PURCHASERS.      [CH.  XI. 

years  by  difFicultics  in  the  title,  the  vendor  was  held  account- 
able for  a  deterioration  of  the  land  during  that  period  J 

50.  Questions  often  arise  as  to  the  constructioti  of  con- 
tracts in  reference  to  the  time  of  performance. 

51.  Under  an  agreement  for  conveyance  of  land,  on  pay- 
ment of  the  purchase-money,  a  certain  amount  of  which  is 
to  be  paid  annually,  "  the  time  commencing  at  the  date  of 
the  agreement;"  the  day  of  the  date  is  to  be  excluded; 
although  the  purchaser  in  the  mean  time  is  to  have  the  use 
of  the  land.^ 

52.  All  objections  to  a  title  were  to  be  taken,  within 
twenty-one  days  from  delivery  of  the  abstract,  or  deemed 
waived ;  and  time  was,  in  that  respect,  to  be  considered  of 
the  essence  of  the  contract.  Held,  the  twenty-one  days  did 
not  begin  to  run,  until  a  perfect  abstract  had  been  delivered.^ 

53.  Where  parties  contract,  that  the  purchase  of  lands 
shall  be  completed  within  so  many  months,  calendar  months 
are  intended.^  But  the  word  month  may  mean  lunar  or  calen- 
dar month,  according  to  the  intention  of  the  contracting  par- 
ties. Sale  of  land  on  the  24th  of  January  ;  an  abstract  of  the 
title  to  be  delivered  to  the  purchaser  within  a  fortnight,  to  be 
returned  by  him  in  two  months,  to  be  redelivered  within  four 
months,  and  the  purchase  to  be  completed  on  the  24th  of 
June,  making  a  period  of  precisely  five  calendar  months 
from  the  date  of  the  sale  and  conditions.  Held,  calendar 
montlis  were  intended.  And  the  condition  for  delivery  of 
the  draft  of  the  conveyance  within  three  months  was  not  a 
condition  precedent,  with  respect  to  its  delivery  within  the 
precise  time.^ 

54.  A  vendor,  in  Illinois,  covenanted  with  the  vendee,  in 
Boston,  to  convey  to  him  certain  lands  in  Illinois,  before  a 
certain  day.  It  was  also  verbally  agreed,  at  the  time,  that 
the  former  should  record  the  deed  in  Illinois,  before  sending 


'  Foster  v.  Deacon.  3  Madd.  394.  *  Hipwell  v.  Knight,  1  You.  &  Coll. 

2  Farwell  v.  Rogers,  4  Cush.  4G0.  419. 

3  Hobson  V.  Bell,  2  Beav.  17.  '=  Lang  v.  Gale,  1  Mau.  &  Selw.  III. 


CH.  XT.]  TIME   OF   PERFORMING   CONTRACTS.  207 

it  to  Boston,  but  that  it  should  reach  Boston  before  the  day 
named.  Held,  the  covenant  was  performed  by  depositing 
the  deed  in  the  registry  before  the  day,  though  not  sent  to 
Boston  till  after.i 

55.  Action  on  an  agreement  to  let  the  plaintiff  a  messuage 
for  a  year  from  the  25th  of  March ;  he  to  take  the  fixtures 
at  a  valuation,  and  pay  for  them  on  entry.  Held,  the 
plaintiff  might  show  a  tender  on  the  10th  of  April.^ 

56.  By  the  conditions  of  a  sale,  which  took  place  Septem- 
ber 18th,  the  purchaser  was  immediately  to  pay  a  deposit,  in 
part  of  the  purchase-money,  and  to  sign  an  agreement  for 
payment  of  the  remainder  by  the  28th  of  November ;  the 
vendor  was  to  deliver  an  abstract  within  fourteen  days  from 
the  sale,  and  to  deduce  a  good  title ;  objections  to  the  title 
were  to  be  taken  within  twenty-one  days  after  delivery  of 
the  abstract ;  and  the  purchaser  was  to  prepare  the  deeds  of 
conveyance  by  the  10th  of  November.  Held,  no  precise 
time  was  fixed,  within  which  the  vendor  was  to  deduce 
a  good  title,  and  therefore  a  declaration  against  him  for  fail- 
ing to  do  so  ought  to  aver,  that  he  had  been  allowed  a 
reasonable  time.^ 

1  Shaw  V.  Ilavward,  7  Cush.  170.  ^  Sansom  v.  Rhodes,  6  Bing.  N.  C. 

»  Edmaa  v.  Allen,  6  Bing.  N.  C.  19.        261. 


208 


LAW   OF  VENDORS'  AND   PURCHASERS.  [CH.  XII. 


CHAPTER  XII. 


TITLE   OF   THE   VENDOR. 


1.  General  importance  of  the  subject. 

2.  In  general,  tlic  vendor  is  bound  to 
convey  a  cpod  title. 

15.  Destruction  of  the  property  sold, 
after  the  sale. 

18.  Grounds  of  objection  to  the  title. 


21 .  Mutual  rights  and  oblig.itions  of 
the  parties,  as  to  conveyance  of  the 
land  and  payment  of  the  price. 

28.  Question  of  time,  in  reference  to 
the  title. 

36.  Waiver  of  title. 


1.  The  title  which  a  vendor  of  real  property  is  bound  by 
his  contract  to  convey  to  the  vendee,  is  of  course  one  of  the 
most  important  topics  connected  with  the  general  subject  of 
this  work.  Indeed,  it  may  be  said  to  connect  itself,  directly 
or  indirectly,  with  almost  every  branch  of  that  subject.  A 
mere  engagement  to  convey  certain  land  is  worth  little  or 
nothing  to  the  proposed  vendee,  unless  the  vendor  is  the 
owner  of  that  land.  It  is  an  important  question,  there- 
fore, how  far  such  oivnership  is  an  essential  element  or 
condition  of  the  contract,  and  what  binding  assurance  or 
guaranty  of  title  the  purchaser  is  entitled  to  receive.  The 
same  question  arises  in  regard  to  liens  or  incumbrances  upon 
the  land,  diminishing  its  value  to  the  purchaser;  and  a  want 
of  title  to  a  part  only  of  the  property.  So,  also,  the  time 
and  mode  of  settling  questions  of  title,  and  the  right  of  re- 
scinding  or  claiming  compensation  for  defects  of  title,  are 
matters  upon  which  numerous  questions  and  nice  distinc- 
tions are  to  be  found  in  the  books. 

2.  It  is  held,  as  the  general  doctrine,  that  an  agreement 
to  sell  land  implies  that  the  title  shall  be  good  and  unin- 


en.  XII.]  TITLE   OP   THE   VENDOR.     ^  209 

cumbered.^  (a)  So,  if  the  contract  be,  "  to  convey  the  land 
by  a  deed  of  conveyance,"  for  a  stipulated  price,  this  is  not 
fulfilled  by  executing  a  deed  merely  ;  but  the  party  must  be 
able  to  convey  sueh  a  title„sis  the  other  party  had  a  right  to 
expect ;  and  this  is  to  be  determined  from  the  fair  import  of 
the  terms  used,  with  reference  to  the  subject-matter.^  More 
especially,  when  a  vendor  seeks  specific  execution  of  the 
contract,  he  must,  if  required  by  the  defendant,  exhibit  such 
a  title  as  the  contract  requires.-^  So,  where  A.  agreed  to  do 
work  for  B.,  and  take  certain  land  in  payment,  to  which  B. 
agreed  to  make  title  to  him ;  the  title  not  being  in  B.,  A. 
may  rescind  the  contract,  or,  if  he  does  the  work,  he  will  be 
entitled  to  payment  in  cash.'^  So,  in  case  of  a  contract  to 
buy  and  sell  certain  lands  ;  the  seller,  on  compliance  with 
the!  terms,  to  give  a  sufficient  deed  ;  held,  he  was  bound  to 
convey  an  unincumbered  legal  estate  in  fee.^  So,  an  agree- 
ment to  convey  land,  generally,  and  with  nothing  in  the 
transaction  itself  to  indicate  the  kind  of  conveyance,  requires 
a  deed  in  fee  simple,  with  covenants  of  general  warranty.^ 
So  a  covenant  to  give  a  good  and  sufficient  deed  of  convey- 
ance, free  of  all  incumbrances,  binds  the  party  to  give  a  deed 
which  passes  a  title  to  the  land.''  So  a  contract  to  give 
a  good  and  'sufficient  deed  requires  a  legal  title  in  the  grantor ;  . 
not  merely  a  deed  containing  covenants  of  warranty  and 
against  incumbrances.^  If  the  vendor  cannot  make  such  a 
title,  the  purchaser  may  recover  back  the  purchase-money 
with  interest.^ 

3.  BiU  for  specific  performance  of  a  contract  to  convey 

1  Prothro  y.  Smith,  6  Eich.  Eq.  324 ;         '^  Witter  v.   Biscoe,  i  Eng.    (Ark.) 
Wilde  V.  Foot,  4  Taunt.  334 ;  Watts  v.    422. 

Waddle,  1  M'L.  200.  "  Hill  v.  Eesse.oien,  17  Barb.  162. 

2  Lawrence  v.  Dole,  11  Verm.  549.  ^  Fletcher  v.  Button,  4  Comst.  396. 
**  Tomlin  u.  M'Chord,  5  J.  J.  Marsh.     See    Garley   v.  Rice,   16   Johns.    267; 

138.  Parker  v.  Parmelee,  20  Johns.  130. 

*  Fitch  V.  Caser,  2  Greene,  300.  ^  Ibid. 

5  Owings  V.  Baldwin,  8  Gill,  337. 

(a)  An  agreement  by  a  party  to  pay  a  certain  sum,  "if  he  should  get 
certain   land,"  means,  "  if  be  should  acquire  a  valid  title   to  the   land."       . 
Woods  V.  Kirk,  8  Fost.  324. 

18* 


210  LAW  OF  VENDORS  AND  PURCHASERS.      [CH.  XII. 

land.  The  defendant  agreed  to  "  convey  by  a  good  and 
valid  deed,"  within  one  year,  upon  four  days'  notice,  on  con- 
dition of  the  plaintiff's  paying  in  a  specitied  manner  ut  the 
expiration  of  the  year  or  the  notice.  A  previous  deed  of 
the  land,  unrecorded  and  unknown  to  the  plaintiff,  assigned 
to  the  defendant's  grantor  a  mortgage  made  by  a  former 
owner,  containing  a  reservation  of  "  such  interest  as  the 
mortgagor  acquired  by  virtue  of  a  certain  prior  mortgage  of 
the  same  to  him  to  secure  the  payment  of  $1,400."  The 
plaintiff  afterwards  made  inquiry  of  the  defendant  respect- 
ing the  reservation,  and  notified  him  that  he  should  not 
accept  a  quitclaim  deed.  The  defendant  made  no  explana- 
tion, but  offered,  for  a  further  sum,  to  clear  up  the  title. 
Within  the  year,  the  plaintiff  notified  the  defendant,  tliat  he 
should  take  the  property,  as  agreed,  and  demanded  a  war- 
ranty deed,  tendering  the  price.  The  defendant  refused  to 
give  such  deed,  but  tendered  a  quitclaim  deed,  and  demanded 
payment,  which  the  plaintiff  refused.  Held,  the  conveyance 
and  payment  were  to  be  concurrent,  and  each  party  was 
bound  to  perform,  on  his  part,  at  the  time  appointed  ;  that 
the  plaintiff  was  not  bound  to  accept  a  quitclaim  deed,  or 
make  further  advances,  till  the  title  was  cleared  up  ;  that 
any  deed,  passing  a  clear  title  in  fee,  would  satisfy  the  con- 
tract, but,  as  the  property  was  apparently  incumbered,  the 
defendant  was  bound  either  to  remove  or  explain  the  incum- 
brance, or  give  a  warranty  deed.^ 

4.  It  is  further  said,  on  this  subject,  that  where  one  con- 
tracts to  purchase,  on  the  faith  of  the  vendor's  having  a  good 
title,  he  has  a  right  to  have  the  title  sifted  to  the  bottom^ 
before  he  can  be  called  upon  either  to  accept  an  indemnity 
or  compensation  for  a  defect,  or  to  abandon  the  contract.^ 
So,  equity  will  not  compel  a  purchaser  to  take  a  doubtful 
title  ;  as  where  it  depends  on  the  doubtful  interpretation  of 
a  will,  all  parties  in  interest  not  being  bound  by  the  decree.^ 


^  '  22  Conn.  513.  3  Sohier  v.  Williams,  1  Curt.  479. 

•  2  KuatchbuU  v.  Grueber,  3  Mer.  137. 


CH.  XII.]  TITLE    OF   THE    VENDOR.  211 

5.  A  title  is  doubtful,  when  it  is  such  as  other  persons 
may  fairly  question,  although  the  Court  entertains  a  favor- 
able opinion  of  it.'  If  the  doubts  concerning  a  title  arise 
upon  a  question  connected  with  the  general  law,  the  Court 
is  to  judge  whether  that  law  is  settled ;  if  not,  or  if  extrinsic 
circumstances,  which  neither  the  purchaser  nor  the  Court 
can  satisfactorily  investigate,  may  affect  the  doubt  as  to  the 
title ;  specific  performance  will  be  refused.^  Thus,  upon  a^ 
bill  by  a  vendor  for  specific  performance,  the  case  turned  on 
the  construction  of  a  will,  and  the  Court  strongly  inclined  in 
.favor  of  the  title ;  but,  the  opinion  not  resting  upon  any  gen- 
eral rule  of  law,  or  upon  reasoning  which  would  necessarily 
satisfy  others,  or  preclude  substantial  litigation ;  specific  per- 
formance was  refused.^ 

6.  Written  agreement,  executed  at  the  time  of  the  delivery 
of  a  deed  of  land,  and  the  making  of  a  note  for  the  price, 
that  if,  in  a  suit  then  pending  between  other  parties,  involv- 
ing part  of  a  certain  line,  another  part  of  which  affected  the 
boundaries  of  the  land  conveyed,  it  should  be  decided  that 
the  grantor  was  not  entitled  to  a  certain  part  of  the  land,  he 
should  repay  part  of  the  price.  Held,  the  effect  of  the 
agreement  was,  to  make  his  riglit  and  title  to  convey  de- 
pendent upon  the  final  decision  of  the  suit ;  and  an  adverse 
judgment  therein  might  be  set  up  in  defence  pro  tanto  to  an 
action  for  the  price.'^ 

7.  The  right  to  a  good  title  does  not  grow  out  of  the 
agreement  between  the  parties^  but  is  given  by  law.  But  a 
purchp,ser  may  waive  his  right,  by  going  on  with  the  agree- 
ment after  he  has  full  notice  that  he  is  not  to  expect  a  good 
title.  This  is,  in  such  case,  matter  of  notice,  and  not  of 
contract.^  Where  the  doubt  as  to  a  title  is  upon  matters  of 
fact,  it  may  form  a  proper  case  for  an  issue  at  law ;  and,  till 
the  doubt  is  removed,  or  confirmed,  by  further  investigation, 
the  Court  will  not  either  decree  performance  or  dismiss  the 
bill.6 

'•  Pyrke   v.    Waddingham,    17    Eng.         *  Daggett  i'.  Daggett,  8  Cush.  520.     * 
■  Law  &  Eq.  534.  ^  Ogilvie  v.  Foljambe,  3  Mcr.  53. 

2  Ibid.  3  Ibid.  ^  Seymour  v.  Delancey,  1  Hopk.  436. 


212  LAW  OP  VENDORS  AND  PURCHASERS.     [m.  XII. 

8.  But,  on  the  other  hand,  it  is  held,  that,  in  order  to  main- 
tain a  1)111  for  sj)eciric  performance,  a  vendor  need  only  prove 
a  good  markclable  tille ;  not  one  which  may  not  possibly  be 
defeated.^  Thus,  in  case  of  an  agreement  to  convey  land, 
the  title  to  be  "  good  and  satisfactory  to  the  party  to  receive 
it;"  the  purchaser  is  bound  to  accept  a  title  free  from  any 
reasonable  objection.^  So  a  good  title  may  be  made, 
although  the  origin  cannot  be  shown  by  any  deed  or  will ; 
by  proof  of  such  a  long,  uninterrupted  possession,  enjoy- 
ment, and  dealing  with  the  property,  as  afford  a  reasonable 
presumption  that  there  is  an  absolute  title  in  fee  simple.^ 

9.  More  especially,  if  the  obligor  in  a  bond  for  titles  is 
insolvent,  or  without  the  jurisdiction  of  the  Courts,  leaving 
no  property  within  it  liable  for  the  claim  against  him,  and 
there  is  an  outstanding  paramount  title ;  the  vendee  shall 
have  relief  frpm  payment  of  a  proportional  part  of  the  price, 
before  eviction.  The  particular  circumstances  relied  on 
for  such  abatement  must  be  distinctly  alleged.*  But,  in  an 
action  by  the  assignee  of  a  purchaser  against  the  vendor, 
to  enforce  specific  performance,  it  is  no  defence,  that  the 
assignor,  with  another  person,  owes  the  defendant  the  pur- 
chase money  of  other  land,  that  they  are  insolvent,  and  the 
land  an  inadequate  security.^ 

10.  Where  the  contract  binds  the  vendor  to  give  a  good 
title,  the  want  of  such  title  may  avoid  the  contract  at  his 
election,  even  though  the  purchaser  seeks  to  enforce  it. 
Thus,  one  of  the  terms  of  an  agreement  was,  that  the  con- 
tract should  be  void,  if  the  purchaser's  counsel  should^  be  of 
opinion  that  a  marketable  title  could  not  be  made  by  a 
certain  time.  The  counsel  being  of  that  opinion,  a  bill  by 
the  purchaser  for  specific  performance,  with  compensation, 
was  dismissed  with  costs ;  and  an  application,  afterwards 
made  by  the   plaintiff,  that   his  deposit  might  be   set  off 

1  Thompson  v.  Dulles,  5  Rich.  Eq.  *  McGehee  v.  Jones,  10  Geo.  127. 

370.  5  Seaman    v.    Van    Rensselaer,    10 

0     2  I'agen  v.  Davison,  2  Duer,  153.  Barb.  81. 
'  Cottrell  V.  Watkins,  1  Beav.  361. 


en.  XII.]  TITLE    OF   THE   VENDOR.  213 

against  the  defendant's  costs,  and  the  surplus  (if  any)  paid 
to  him,  was  refused  with  costs.^ 

11.  Contrary  to  the  prevailing  doctrine  upon  this  subject, 
which  is  as  above  stated  ;  it  has  been  questioned,  whether 
a  covenant  to  give  a  good  and  lawful  deed  relates  to  the 
form  of  the  deed^  or  to  the  goodness  of  the  title."^  So  it  has 
been  held,  that  a  bond,  to  make  title  free  from  incumbrances, 
is  fulfilled,  by  a  conveyance  in  fee  simple  free  from  incum- 
brances, accepted  by  the  vendee."^  So,  in  case  of  an  agree- 
ment to  give  a  deed  of  three  out  of  sixteen  tenements  to  the 
builder,  when  completed  ;  held,  the  deed  must  be  a  convey- 
ance in  fee  simple,  of  the  three  tenements  designated  by  the 
parties,  with  a  covenant  against  incumbrances  done  or  suf- 
fered by  the  grantor.*  So  an  agreement,  on  a  sale  of  land, 
"  to  execute  a  deed  "  to  the  purchaser,  has  been  held  satisfied 
by  executing  a  deed  without  warranty  or  covenants.^ 

12.  Action  by  the  vendor,  upon  a  contract  for  the  sale  and 
exchange  of  lands,  the  title  to  be  "  satisfactory  to  the  party 
to  receive  it."  Answer,  that  the  lands  were  subject  to  the 
lien  of  certain  judgments,  which  the  plaintiff  was  to  convey 
on  the  day  appointed  for  the  exchange  of  deeds.  Held,  the 
defendant  could  not  show,  that  the  judgments  were  an  appa- 
rent, though  not  a  real  lien,  and  therefore  a  cloud  upon  the 
title.6 

13.  An  agreement,  made  in  1849,  recited,  that  the  father 
of  the  plaintiff,  in  1797,  demised  certain  premises  to  one  A., 
and  that  the  plaintiff,  under  a  devise  from  his  father,  owned 
the  reversion  in  fee.  The  agreement  then  provided,  that  the 
plaintiff  would,  on  receiving  from  the  defendant  $2,000,  in 
certain  annual  instalments,  with  interest,  the  last  payable 
in  1859,  convey  the  property  with  warranty,  excepting  any 
title  or  right  und«  the  lease.  The  defendant  agreed  to  pay 
the  $2,000  ;  and  it  was  agreed  that  he  should  enter  immedi- 

1  Williams  v.  Edwards,  2  Sim.  78.  ^  Van  Eps  v.  Corporation  of  Schenec- 

2  Winne  v.  Reynolds,  6  Paige,  407.  tady,  12  Johns.  436. 

3  Johnson  v.  Collins,  17  Ala.  318.  **  Fagen  v.  Davison,  2  Duer,  153. 
*  Ellis  V.  Burden,  1  Ala.  (N.  S.)  458. 


214  LAW  OP  VENDORS  AND  PURCHASERS.      [CH.  XII. 

ately  and  pay  the  taxes.  The  plaintiff  brings  this  aT;tion  for 
an  instahncnt  of  tho  principal  and  the  interest.  The  answer 
alleged,  that  the  farm  or  a  large  part  of  it  was  in  possession 
of  persons  holding  or  claiming  adversely,  but  stated  no  facts 
constituting  such  adverse  possession.  Held,  as  the  agree- 
ment recited  that  the  plaintiff  was  a  reversioner,  the  plaintiff 
was  not  bound  to  have  given  possession  ;  that  he  did  not 
agree  to  give  possession,  but  the  defendant  was  to  take  it, 
and  be  himself  the  actor ;  and  that  the  answer  was  no  de- 
fence, as  there  can.be  no  adverse  possession  against  a  rever- 


sioner.i 

14.  By  an  unsealed  instrument,  A.,  in  consideration  of 
£7,000,  agreed  to  present  to  a  rectory,  on  the  next  avoidance, 
such  person  as  B.  should  nominate,  and  to  furnish  an  ab- 
stract and  execute  a  conveyance  of  the  next  presentation  to 
B.  A.  afterwards,  with  the  assent  of  B,  agreed  to  sell  the 
next  presentation  to  C,  and  to  convey  such  title  as  he  (A.) 
had  received,  in  consideration  of  £7,500,  of  which  .£500  was 
to  be  paid  to  B.  on  a  certain  day.  A.  furnished  an  abstract 
of  such  title  as  he  had,  but  C.  refused  to  take  it,  and  no  con- 
veyance was  tendered  to  him.  In  an  action  by  B.  against  C. 
for  the  X500  :  held,  that  there  was  a  sufficient  consideration 
for  C.'s  promise ;  that  A.  was  not  bound  to  make  a  market- 
able title,  but  only  to  convey  such  as  he  had  received ;  and 
that,  as  C.  refused  to  accept  that  title,  it  was  not  necessary 
to  tender  a  conveyance.^ 

15.  The  title  to  be  acquired  by  a  purchaser  may  be 
affected,  by  circumstances  occurring  after  the  making  of 
the  contract ;  as  by  the  partial  destruction  of  the  property 
sold. 

16.  Contract  for  the  sale  of  houses  ;  which,  from  defects 
in  the  title,  could  not  be  completed  on  theiday.  The  treaty, 
however,  proceeded,  upon  a  proposal  to  waive  the  objections 
on  certain  terms.     The  houses  being  burnt  before  a  con- 

^  Clarke  v.  Hughes,  13  Barb.  147.  ^  Wilmot  v.  Wilkinson,  6   Barn.  & 

.  Cress.  506. 


CII.  XII.]  TITLE    OF   THE   VENDOR.  215 

veyance  ;  the  purchaser  is  bound,  if  he  accepted  the  title, 
although  the  vendor  suffered  the  insurance  to  expire,  at  the 
day  when  the  contract  was  originally  to  have  been  com- 
pleted, without  notice.  A  reference  to  the  master  was  there- 
fore directed,  to  inquire  whether  the  proposal  was  accepted, 
or  acquiesced  in,  on  behalf  of  the  purchaser.^ 

17.  A.  articles,  on  behalf  of  B.,  to  purchase  four  houses  in 
Jamaica,  for  ^800.  The  houses  are  soon  afterwards  swal- 
lowed up  by  an  earthquake.  Although  A.  had  no  assets  of 
B.,  yet  he  was  decreed  to  pay  the  purchase-money.^ 

18.  With  regard  to  the  particular  grounds  of  exception  to 
the  title  of  a  vendor,  it  is  foreign  from  the  plan  of  the  present 
work,  to  consider  the  various  modes  of  acquiring  title  ;  as  by 
deed,  inheritance,  or  devise ;  our  inquiries  being  strictly  lim- 
ited to  executory  contracts  of  sale,  and  not  embracing  those 
executed  alienations,  by  which  such  contracts  are  often  per- 
fected. Ordinarily,  the  title  of  the  vendor  is  exhibited  by  doc- 
umentary evidence  ;  as  by  a  deed  or  will.  Sometimes,  how- 
ever, questions  have  arisen  upon  the  sufficiency  of  other 
proof.  Thus,  upon  a  bill  for  specific  performance  of  a  sale, 
and  exceptions  to  the  master's  report  in  favor  of  the  title  ; 
one  link  in  the  chain,  was  a  deed  found  among  the  title 
papers,  accompanying  the  possession,  but  with  respect  to 
which  the  weight  of  evidence  was,  that  the  deed  was  not 
genuine.  By  excluding  that  deed,  the  complainant  would 
be  reduced  to  rely  upon  adverse  possession^  which  was  less 
than  twenty-five  years.  There  was  slight  evidence  that  the 
maker  of  the  deed  was  an  alien,  and,  if  not  so,  there  was  no 
account  of  his  heirs  or  devisees.  Held,  a  case  proper  for  an 
issue  at  law.  If  the  complainant's  title  had  been  clearly 
adverse  for  twenty-five  years,  it  would  not  be  sufficiently 
impeached  by  the  possibility,  either  of  an  escheat,  or  of  such 
grantor's  having  left  heirs  or  devisees,  whose  title  would  be 
protected  by  disabilities.  Such  title  by  adverse  possession 
would  be  sufficient  to  preclude  all  other  questions,  and  to  be 

1  Paiue  V.  Meller,  6.  Ves.  349.  ^  c^gg  y.  Rudele,  2  Vern.  280. 


216  LAW   OF   VENDORS    AND    PURCHASEIlS.  [CH.  XII. 

made  the  ground  for  a  decree.^  In  the  same  connection  it 
may  be  stated,  that  the  alicuai^c  of  the  vendee  is  an  insuffi- 
cient ground,  to  entitle  the  vendor  to  a  decree  rescinding  a 
sale,  though  it  may  afford  a  reason  for  refusing  specific  per- 
formance against  the  vendee.  But,  if  the  partiesWiave  not  an 
adequate  remedy  at  law,  the  vendor  may  be  considered  as  a 
trustee  for  purchasers  under  a  sale  by  order  of  the  Court,  for 
the  benefit  of  the  vendee.^  But  a  vendee  will  not  be  com- 
pelled to  take  a  title,  founded  on  a  decree  against  an  infant, 
because  the  latter  may  show  cause  against  it  when  of  age.^ 
So,  where  title  is  sought  through  a  wife,  the  husband  must  be 
made  a  party,  in  order  to  decree  a  good  title.  And  so  where 
there  is  a  dower  interest  outstanding.* 

19.  The  decree  of  title  in  one  State,  to  lands  in  another, 
cannot  vest  the  legal  title.^ 

20.  A  contract  to  convey,  so  soon  as  a  suit  then  pending 
for  the  title  shall  be  decided,  gives  to  the  vendor  all  the  time 
necessary  to  close  the  litigation  in  all  its  forms.^ 

21.  We  have  already  considered  (Chap.  3)  the  liability  of 
a  purchaser  to  pay  the  stipulated  price,  as  depending  upon 
the  vendor's  performance  of  his  part  of  the  agreement.  It 
may  be  added  in  the  present  connection,  that,  in  a  contract 
for  the  sale  of  land,  if  the  price  is  to  be  paid  at  the  time  of 
the  conveyance,  the  covenants  to  convey  and  to  pay  the  price 
are  dependent  covenants,  and  the  declaration  in  an  action 
for  the  price  must  aver  a  readiness  to  convey,  and  the  plain- 
tiff must  prove  his  ability  to  convey .^  So  an  injunction,  to  a 
judgment  for  the  purchase-money,  ought  not  to  be  dissolved, 
until  a  good  and  sufficient  deed  be  tendered  by  the  vendor.® 

22.  Bond  from  defendant  to  plaintiff,  to  convey  land  by  a 
quitclaim  deed,  at  a  day  named,  on  payment  of  a  certain 
sum.  On  the  day,  the  plaintiff,  having  the  money  within 
reach,  though  not  actually  in  hand,  offered  to  pay  i't,  but 

1  Seymour  v.  Delancey,  1  Hopk.  436.         ^  Ibid. 

2  Hepburn  v.  Dunlap,  1- Wheat.  179.         ^  Ibid. 

^  Bryaa  v.  Reed,  1  Dev.  &  Batt.  Eq.        ''  Lawrence  v.  Dole,  11  Verm.  549. 
86.  8  Grantland  v.  Wight,  2  Munf.  179. 

*  Watts  V.  Waddle,  1  McL.  200. 


CH.  XII.]  TITLE    OF   THE    VENDOR.  217 

made  no  formal  tender ;  but  the  defendant  required  payment 
before  the  conveyance  was  made.  Held,  the  plaintiff  was 
entitled  in  equity  to  a  decree  for  a  quitclaim-deed  of  the 
land,  free  from  incumbrances  since  the  date  of  the  bond.^ 

23.  Land  was  sold  at  auction  to  the  defendant,  who  sub- 
scribed the  terms  of  sale ;  which  were,  that  a  certain  part  of 
the  purchase-money  should  be  paid  within  seventy-fiVe  hours  ; 
a  deed  given  by  the  vendor,  with  warranty  of  title,  except 
as  to  the  quit  rents,  in  such  lots  as  should  be  designated ; 
that  the  purchaser  should  execute  a  bond  and  mortgage  for 
the  residue  of  the  purchase-money  ;  and  that  the  deed,  bond, 
and  mortgage,  should  bear  date  on  the  day  of  the  sale.  At 
the  time  of  sale,  the  premises  were  subject  to  a  registered 
and  unsatisfied  mortgage.  The  vendor  brings  assumpsit^ 
for  breach  of  the  conditions.  Held,  that  giving  the  deed, 
bond,  and  mortgage,  were  to  be  simultaneous  acts ;  that,  as 
the  plaintiff  was  not  in  a  situation  to  convey  an  indefeasible 
title,  the  defendant  was  not  bound  to  perform  the  agreement 
on  his  part ;  and  that  defendant's  notice  of  the  registration 
was  immaterial,  because,  according  to  the  true  construction 
of  the  terms  of  sale,  the  quit  rents  were  the  only  incum- 
brance.2 

24.  In  the  sale  of  a  farm,  it  was  stipulated,  that  part  of  the 
purchase-money  should  be  paid  when  the  deed  was  ready, 
and  the  residue  in  annual  instalments.  Held,  the  vendor 
could  not  claim  any  part  of  the  purchase-money,  until  he 
had  tendered  an  unincumbered  title  ;  not  merely  a  warranty 
deed  ;  the  farm  being  subject  to  a  mortgage  then  due.^  [a) 

1  Parker  v.  Perkins,  8  Cush.  318.  ^  g^yan  v.  Drury,  22  Pick.  485. 

2  Judson  V.  Wass,  11  Johns.  525. 


(a)  In  an  action  by  the  vendor  upon  such  contract,  parol  evidence  is  in- 
admissible that,  when  the  contract  was  made,  the  vendee  knew  of  the  mort- 
gage, and  that  it  was  then  agreed,  that  the  mortgage  should  remain.  The 
vendor  having  tendered  a  wai'ranty  deed,  held,  the  declarations  of  the  ven- 
dee, made  previously  to  the  tender,  that  he  should  not  insist  on  the  removal 
of  the  incumbrance,  were  not  a  waiver  of  exception  to  the  title,  unless,  taken 
19 


218  LAW   OF   VENDORS   AND   PURCHASERS.  [CII.  XII. 

25.  Contract  for  the  sale  of  lands,  made  in  August,  1845. 
The  vendee  agreed  to  pay  tlierefor  $950,  viz. :  $200  in  April, 
18-16,  $200  in  April,  1847,  and  the  rest  in  two  subsec^uent 
annual  payments.  The  vendor  agreed  to  deliver  possession 
in  November,  1845,  and  a  deed  in  May,  1846.  Possession 
was  delivered  and  the  first  instalment  paid,  but  no  deed  de- 
livered or  tendered.  Held,  an  action  did  not  lie  for  the  sec- 
ond instalment.! 

26.  Although  the  vendee  has  paid  the  price,  and  the  ven- 
dor offers  to  perform  the  contract  on  his  part ;  still  no  title 
passes  till  the  deed  is  actuaUy  accepted.  Bond  for  a  convey- 
ance. The  obligee  occupied  under  the  bond  for  nineteen 
years,  and  paid  the  purchase-money,  and  the  obligor  made, 
executed,  and  tendered  a  deed,  but  the  obligee  refused  to 
accept  it  or  surrender  the  bond.  Held,  he  acquired  no  title 
to  the  land.^ 

27.  The  mutuality  of  the  contract  imposes  an  obligation  of 
the  same  nature  upon  the  vendee  as  upon  the  vendor.  Thus 
the  vendor  is  not  bound  to  tender  a  deed  and  demand  pay- 
ment, except  for  the  purpose  of  enabling  him  to  affirm  the 
contract,  and  recover  the  purchase-money  in  a  suit  at  law. 
And,  where  payment  at  a  particular  day  is  made  an  essential 
part  of  the  contract,  if  the  vendee  wishes  to  have  specific  per- 
formance, he  must  tender  or  offer  the  money  at  the  time,  upon 
the  receipt  of  a  deed.^  So,  on  a  sale  under  a  decree,  the  ab- 
stract stated,  that  the  vendor  was  devisee  of  A.,  who  took  as 
heir  to  B.  On  inquiry,  the  vendor's  solicitor  confirmed  that 
statement ;  and  the  master  accordingly  approved  of  the  title. 
Just  before  the  conveyance,  the  purchaser  discovered  that  C. 

1  Grant  v.  Johnson,  1  Seld.  247.  ^  T^ygUs  v.  Smith,  7  Paige,  22 ;  S.  C 

-  Dwinal  v.  Holmes,  33  JMaine,  172.  2  Edwards,  78. 


in  connection  with  what  took  place  at  the  time  of  tender,  the  -whole  evidence 
proved,  that  the  vendee  intended  at  that  time  to  waive  such  exception  ;  for 
such  declarations,  being  made  without  consideration,  were  not  obligatory, 
it  not  appearing  that  the  vendor  acted  on  the  faith  of  them,  or  had  been 
subjected  to  any  damage  or  expense  thereby. 


en.  XII.]  TITLE   OF   THE   VENDOR.  219 

was  the  heir  of  B. ;  and  it  appeared  that  the  solicitor  had  re- 
ceived information  of  that  fact,  but  concealed  it.  A  motion,  by 
the  pm-chaser,  to  be  discharged  from  his  purchase,  was  granted, 
though  the  vendor  had  obtained  a  release  from  C.  before  the 
motion  was  made.^  So  under  a  decree  directing  the  sale  of 
an  estate,  which  as  against  T,,  one  of  the  defendants,  was 
only  a  decree  nisi,  and  before  the  decree  was  made  absolute, 
the  estate  was  sold,  and  A.  was  reported  the  purchaser. 
Afterwards,  on  the  application  of  A.,  an  order  was  made  by 
the  Vice- Chancellor  for  discharging  him  from  the  purchase, 
on  the  ground  that  the  decree  was  not  absolute  as  against  T. 
The  vendor  immediately  gave  notice  of  a  motion  before  the 
Lord  Chancellor,  to  discharge  that  order,  and,  that  motion 
having  stood  over  a  considerable  time,  the  decree  was  made 
absolute  as  against  T.,  before  it  was  heard.  Held,  the  pur- 
chaser was  entitled  to  be  discharged  at  the  time  the  applica- 
tion was  made,  and,  having  been  once  discharged  by  an  order 
which  was  right  at  the  time,  the  contract  could  not  be  re- 
vived by  the  subsequent  proceed ings.^ 

28.  We  have  already  considered  (Chap.  11)  the  question 
of  time,  as  bearing  upon  the  respective  rights  and  liabilities 
^f  vendor  and  vendee.  As  has  been  stated,  time  is  generally 
treated  as  of  the  essence  of  the  contract.  Thus,  if  the  ven- 
dor of  an  estate  by  auction  does  not  show  a  clear  title  by 
the  day  specified,  the  purchaser  may  immediately  recover 
back  his  deposit,  and  rescind  the  contract.^  So,  where  it  was 
an  objection  to  a  title,  that  it  was  doubtful  whether  the  wife 
of  a  party  to  a  deed  thirty  years  old  was  barred  by  that  deed 
of  hex  dower ;  it  was  not  answered  by  proving  at  the  trial 
that  she  was  then  dead,  such  proof  not  having  been  before 
given.*  So,  it  being  necessary,  in  order  to  make  a  title  per- 
fect, that  a  recovery  should  be  suffered,  for  the  purpose  of 
barring  an  old  estate  tail,  vested  in  one  not  a  isrustee  for  the 

1  Dalby  v.  Pullcn,  3  Sim.  29  ;  1  Russ.        ^  Wilde  v.  Forte,  4  Taunt.  334. 
&  Myl.  296.  1  Ibid. 

2  Coster  V.  Turner,  1  Russ.  &  Myl. 
311. 


220  LAW   OF   VENDORS   AND   PURCnASERS.  [on.  XII. 

vendor  ;  the  deed  making  the  tenant  to  the  praecipe,  and  the 
warrant  for  sufTcring  the  rocovt'ry,  were  executed  before  the 
filing  of  the  bill  for  specific  performance,  but  the  recovery 
was  not  completed  till  a  few  days  afterwards.  Held,  a  good 
title  was  not  shown  before  commencement  of  suit.^  So  A., 
being  entitled,  under  his  marriage  settlement,  to  a  life  inter- 
est in  certain  freehold  estates,  remainder  to  the  use  of  trus- 
tees for  a  term  of  one  thousand  years,  to  secure  a  jointure 
and  portions,  remainder  to  himself  in  fee,  conveyed  part  of 
the  lands  to  B.  in  fee,  in  exchange  for  other  lands.  B.'s  heir 
having  afterwards  contracted  for  the  sale  of  the  land,  the 
purchaser  refused  to  complete  the  contract,  on  the  ground 
that  A.  had  no  power  to  exchange  the  lands  in  fee.  The 
vendor  then  procured  the  execution  of  certain  deeds,  with  a 
view  of  bringing  the  exchange  within  the  terms  of  a  power 
of  sale  and  exchange,  given  to  the  trustees  under  the  settle- 
ment. Held,  under  these  circumstances,  and  likewise  on  the 
ground  that  the  after-executed  deeds  were  grossly  inaccurate, 
the  purchaser  was  not  bound  specifically  to  perform  the 
agreement.^ 

29.  But,  on  the  other  hand,  it  has  been  held,  that  the 
purchaser  cannot  avoid  the  sale  upon  the  ground  of  want  of 
title  at  the  time,  provided  the  vendor  reasonably  satisfies  his 
contract  in  this  respect.  Thus,  where  one  agrees  to  sell  an 
estate,  a  small  portion  of  which  turns  out  to  be  the  property 
of  another  person ;  the  Court  will  not  discharge  the  purchaser 
from  his  contract,  without  giving  the  vendor  an  opportunity  of 
acquu'ing  a  title  to  that  portion.^  So  where,  by  the  terms  of 
a  sale,  the  vendee  was  entitled  to  immediate  possession,  the 
first  payment  to  be  made  in  part,  by  his  obtaining  an  assign- 
ment of  a  judgment  against  the  vendor,  after  which  the 
deed  was  to  be  given,  the  judgment  cancelled,  and  the  residue 
of  the  first  instalment  paid ;  held,  the  vendor  was  entitled 
to  a  reasonable  time,  after  notice  of  objections  to  his  title, 

1  Lewin  v.  Guest,  1  Russ.  325.  ^  Chamberlain  v.  Lee,  10  Sim.  445. 

-  Cowo-ill  V.  Lord  Oxmantown,  3  You. 
&  Coll.  377. 


CH.  XII.]  TITLE   OF   THE   VENDOR.  221 

to  clear  off  the  incumbrances,  and  procure  the  necessary 
certificate  that  the  property  was  unincumbered.  Also,  that 
three  weeks  was  not  an  unreasonable  time.^  So,  though 
equity  will  not  compel  a  purchaser  to  take  a  title  substan- 
tially defective,  yet  it  is  the  privilege  of  the  vendor  to  com- 
plete his  title,  at  any  time  before  a  decree,  provided  there 
has  been  no  unnecessary  delay ;  and,  if  the  purchaser  fore- 
stalls him,  and  perfects  the  title  himself,  he  is  not  entitled  to 
rescind,  but  can  claim  only  the  expenses  of  removing  the 
defect.'^  So,  A.  purchased  land  from  B.  and  gave  his  bond 
for  the  purchase-money.  Afterwards,  supposing  the  title  to 
be  defective,  A.  procured  a  conveyance  from  C,  the  original 
owner,  under  whom  B.  claimed,  B.  having  refused  to  procure 
such  conveyance  himself.  Held,  although  A.  might  have 
claimed  to  have  the  contract  rescinded  before  his  purchase 
from  C,  he  could  now  only  claim  to  be  reimbursed  what  it 
had  cost  him  to  perfect  the  title. ^ 

30.  Greater  vigilance  is  required  of  the  vendor,  in  perfect- 
ing the  title  to  the  purchaser,  where  the  latter  is  not  in  pos- 
session under  the  contract.  But  where  a  day  is  fixed  for 
the  conveyance,  the  vendee  must  give  notice  of  any  objec- 
tions to  the  title  a  reasonable  time  previous  to  the  day,  that 
the  vendor  may  remove  them  and  convey  at  the  time  ;  or 
equity  may  consider  a  strict  performance  by  a  conveyance 
on  the  day  as  waived.  And,  where  the  vendor  has  not  been 
guilty  of  gross  negligence  in  perfecting  his  title,  equity  may 
decree  a  specific  performance,  upon  a  bill  filed  by  him, 
although  the  title  was  not  perfected  on  the  specified  day ; 
unless  the  time  is  expressly  made  an  essential  part  of  the 
agreement.^ 

31.  So,  as  has  been  seen,  (Chap.  11,)  it  has  been  often  held 
in  equity  to  be  a  sufficient  compliance  with  the  contract,  if 
a  party  can  make  a  good  title  in  a  bill  for  specific  perform- 
ance, at  any  time  before  the  final  decree.^     So,  where  the 

1  More  V.  Sniedburgh,  8  Paige,  600.  *  More  v.  Snieclburgh,  8  Paige,  600, 

2  Westall  V.  Austin,  5  Ired.  Eq.  1.  ^  Bennett,  &c.  v.  Carey,  3  Bro.  390. 


Kindley  v.  Gray,  6  Ired.  Eq.  445 
19* 


/ 


-^y 


222  LAW   OF  VENDORS   AND   PURCnASERS.  [CII.  XII. 

vendor  declines  executing  the  contract,  upon  the  ground  that 
he  is  unable  to  give  a  good  title,  and  the  purchaser  files  his 
bill,  to  compel  the  defendant  to  complete  the  contract,  or 
rescind  it ;  if  the  defendant  is  able  to  give  a  good  title  at  the 
time  of  the  decree,  the  complainant  will  be  compelled  to 
accept  it.  But  the  defendant  will  be  decreed  to  pay  interest 
upon  the  purchase-money,  from  the  time  a  conveyance  was 
demanded.^  So,  the  plaintiff,  in  a  bill  for  specific  performance, 
more  especially  where  time  is  not  material,  and  there  has  been 
no  unreasonable  delay,  is  entitled  to  a  decree,  if,  at  the  hear- 
ing, he  can  show  a  good  title,  although  he  had  not  such  title 
at  the  time  of  the  contract,  or  the  commencement  of  suit. 
Otherwise,  if  the  defendant  retired  from  the  contract  as  soon 
as  the  want  of  title  was  discovered.^  So,  though  a  vendor 
cannot  come  at  any  distance  of  time  for  a  performance ;  yet, 
where  a  bill  was  filed  fourteen  months  after  the  correspon- 
dence upon  the  objections  to  the  title  ceased,  by  the  defend- 
ant's returning  no  answer  to  the  last  letter,  by  calling  for  a 
distinct  answer,  and  threatening  a  bill,  and  the  auctioneer  had 
not  been  called  on  to  return  the  deposit,  it  was  referred  to  the 
master.^  So,  though  a  covenant  to  execute  and  deliver  a  good 
and  sufficient  deed  means  an  operative  conveyance^  or  one 
that  transfers  a  good  and  sufficient  title,  not  a  title  admitted 
to  be  doubtful ;  yet  a  title  at  the  time  of  the  decree,  or  the 
coming  in  of  the  master's  report,  is  sufficient ;  and  the  party 
may  be  allowed  then  to  perform  his  contract,  and  save  the 
forfeiture  of  his  bond,  on  making  compensation  for  the  delay. 
The  rule  of  compensation  is  the  amount  of  the  interest  on 
the  bond,  from  its  date  to  the  time  of  final  decree.'^ 

32.  Bill  for  specific  performance.  The  plaintiff,  claiming 
through  an  alien,  contracted  to  sell  the  estate,  having  for  this 
reason  no  legal  or  equitable  title  to  it.  The  purchaser,  by  his 
own  inquiries,  ascertained  the  defect,  but  did  not,  till  after 
some  months  of  negotiation  with  the  plaintiff,  repudiate  the 
contract.     Pending  the  investigation  of  the  title  in  the  mas- 

1  Pierce  v.  Nichols,  1  Paige,  244.  ^  Hertford  v.  Boore,  5  Ves.  719. 

2  Hoiigart  V.   Scott,  1  Russ.  &  Myl.        *  Clute  v.  Robison,  2  Johns.  595. 
293 ;  Wynn  v.  Morgan,  7  Ves.  202. 


CH.  XII.]  TITLE    OF   THE   VENDOR.  223 

ter's  office,  the  plaintiff  obtained  a  grant  of  the  estate  from 
the  Crown.     Held,  he  was  entitled  to  a  decree.^ 

33.  But  though  equity  will   decree  specific  performance 
■  of  a  sale  of  land,  if  the  vendor  is  able  to  make  a  good  title 

at  any  time  before  decree  ;  the  dismission  of  the  bill  is  a  bar 
to  a  new  bill  for  the  same  object.  But  the  inability  of  the 
vendor  to  make  a  good  title  at  the  time  of  decree,  though 
ground  for  refusing  a  specific  performance,  will  not  authorize 
a  Court  of  Equity  to  rescind  the  agreement,  where  the  par- 
ties have  an  adequate  remedy  at  law  for  its  breach.^ 

34.  Where  a  purchaser,  having  discovered  a  technical  de- 
fect in  the  title,  abandons  it,  and  files  a  bill  to  enjoin  collec- 
tion of  the  price  ;  and  the  vendor  then  supplies  such  defect ; 
the  vendee  is  bound  to  complete  the  purchase.^ 

35.  When  performance  of  a  contract  of  purchase  is  re- 
sisted, upon  grounds  wholly  independent  of  the  title,  and 
the  objections  are  overruled;  or  when  the  purchaser,  although 
doubtful  of  the  title,  consents  by  his  answer  to  accept  it,  if 
in  the  judgment  of  the  Court  it  can  be  rendered  valid  ;  it  is 
sufficient  to  warrant  a  decree  for  specific  performance,  that 
a  good  title  can  be  made  within  a  reasonable  time  before 
the  final  decree.  But  when  the  purchaser  rejected  the  title 
offered,  as  insufficient,  and  upon  that  ground  refused  and 
still  refuses  to  complete  the  contract,  the  entire  controversy 
turns  upon  the  validity  of  the  objections,  and,  if  they  are 
sufficient,  the  Court  will  not  decree  specific  performance."* 

36.  Although  a  vendee  may  require  a  good  and  satisfac- 
tory title  to  the  estate  sold  ;  yet  by  his  own  conduct  he  may 
waive  his  rights  in  this  respect.  Thus,  a  purchaser  buying 
with  full  knowledge  of  a  defect  in  the  title  will  not,  for  that 
defect,  be  permitted  to  come  into  equity  for  relief.^  So,  the 
Court  will  not  set  aside  the  purchase  of  a  house  and  lot,  on 
the  allegation  of  an  imperfect  or  incumbered  title,  not  clearly 
shown  to  be  so,  after  long  possession  by  the  purchaser,  and 

1  Eyston  v,  Simonds,  1  You.  &  Col.        ^  Mays  v.  Swope,  8  Gratt.  46. 

C.  C.  608.  4  Dominick  v.  Mich.iel,  4  Sandf.  374, 

2  Hepburn  v.  Dunlap,  1  Wheat.  179.        ^  Craddock  v.  Shirly,  3  Marsh.  1139. 


224  LAW   OF  VENDORS   AND   PURCHASERS.  [cil.  XII. 

a  confession  of  judgment  for  the  purchase-money.  Such 
conduct  amounts  to  a  waiver  of  objections,  though  the  Court 
might  give  some  relief,  ultimately,  if  the  title  turned  out 
to  be  bad.  The  vendor  having  enforced  the  judgment, 
and  bought  in  the  property  at  a  very  low  rate,  but  oll'ering 
to  rescind  the  sale  on  payment  of  the  debt,  the  Court  de- 
creed accordingly.!  go,  although  a  complainant  who  seeks 
specific  performance  of  a  sale,  but  has  not  performed  his  part 
of  the  contract,  is  not  entitled  to  a  decree,  especially  if  any 
injury  has  resulted  to  the  defendant ;  if  the  defendant  has 
taken  possession,  paid  part  of  the  purchase-money,  and 
executed  the  agreement  in  part ;  the  Court  will  consider  him 
as  having  waived  his  objections,  and  will  decree  the  execu- 
tion of  the  agreement.  It  will,  however,  extend  the  time  of 
payment,  vary  the  security  to  be  given,  and  regulate  the  pay- 
ment of  interest,  according  to  the  justice  of  the  case.^  So 
a  purchaser,  in  possession  under  an  agreement,  having  exer- 
cised acts  of  ownership,  but  objecting  to  the  title,  was  ordered 
to  pay  in  the  purchase-money  ;  and  slighter  acts  of  ownership 
were  held  sufficient,  if  subsequent  to  a  discovery  of  an  objec- 
tion to  the  title.^  So,  where  the  vendee  has  entered  into  pos- 
session, if  he  wishes  to  rescind  the  contract,  on  the  ground 
that  the  vendor  has  not  perfected  his  title,  and  executed  a 
conveyance  within  a  reasonable  time,  or  at  the  time  speci- 
fied, he  must  give  up  the  possession.*  So  if  a  purchaser,  after 
delivery  of  the  abstract,  on  the  face  of  which,  part  of  the  estate 
appears  to  be  subject  to  a  right  of  sporting,  not  mentioned 
in  the  particulars  of  sale,  enters  into  possession,  he  waives 
that  objection  ;  notwithstanding  a  subsequent  offer  of  com- 
pensation, made  by  a  clerk  of  the  vendor's  solicitor,  without 
express  authority.^ 

37.  Conditions  of  sale  stipulated,  that  the  sale  should  be 
completed  on  a  certain  day ;  that  objections  to  the  title,  not 

• 

1  Koach   V.   Rutherford,   4   Desaus.        ^  Dixon  u.  Astley,  1  Mer.  133. 

126 ;  Fludyer  v.  Cocker,  12  Ves.  27.  *  More  v.  Sniedburgh,  8  Paige,  600. 

2  Ramsay  v.  Bi-ailsford,  2  Desaus.        ^  Burnell  v.  Brown,  1  Jac.  &  Walk. 
582.  168. 


CH.  XII.]  TITLE   OF   THE   VENDOR.  225 

made  within  twenty-one  days  from  delivery  of  the  abstract, 
should  be  considered  as  waived ;  and  that,  if  the  purchaser 
should  not  comply  with  the  conditions,  his  deposit  should 
be  forfeited,  and  the  vendor  at  liberty  to  resell.  The  pur- 
chaser did  not  deliver  his  objections,  until  several  weeks  after 
the  twenty-one  days,  and  after  the  day  appointed  for  com- 
pleting the  purchase ;  the  vendor's  solicitor,  however,  received 
them,  and  entered  into  a  long  correspondence  with  the  pur- 
chaser respecting  them,  but  without  coming  to  a  satisfactory 
conclusion.  Finally,  the  vendor  resold  the  property,  at  a 
less  price,  notwithstanding  the  purchaser's  protest,  and  gave 
notice  of  his  intention  to  file  a  bill  to  enforce  the  contract. 
About  six  months  afterwards  he  filed  his  bill  against  the 
vendor,  the  auctioneer,  and  the  second  purchaser,  to  whom 
he  had  some  months  before  given  notice  of  his  prior  contract. 
Held,  the  conditions  had  been  waived  by  the  vendor's  solici- 
tor, and  the  Court  decreed  a  specific  performance  by  the 
vendor,  with  a  reference  to  the  master  as  to  title  ;  dismissed 
the  bill,  with  costs,  as  against  the  auctioneer,  who  denied 
that  he  had  ever  intended  to  part  with  the  deposit,  and  with- 
out costs  as  against  the  second  purchaser,  who  claimed  the 
benefit  of  his  contract,  if  the  Court  should  think  that  the 
plaintiff''s  ought  not  to  be  performed.^ 

38.  The  defendant,  a  purchaser,  was  eight  years  in  posses- 
sion of  premises,  to  which  the  vendor  was  unable  to  make  a 
good  title  ;  and  refused  either  to  abandon  the  agreement,  or 
accept  such  title  as  the  vendor  could  give,  but  paid  no  pur- 
chase money  or  rent.  Upon  a  bill  filed  by  the  vendor  for 
relief,  the  Court  directed  the  agreement  to  be  delivered  up 
to  be  cancelled,  and  the  rents  and  profits  accounted  for,  and 
ordered  the  purchaser  to  pay  the  costs.^ 

39.  Written  agreement  to  buy  a  farm  at  ^60  per  acre ; 
stating  that  it  contained  ninety-six  acres,  more  or  less.  The 
subsequent  deed  used  the  same  terms,  and  security  was 
given  for  the  price  at  $60  for  ninety-six  acres.     There  were 

'  Cutts  V.  Thocley,  13  Sim.  206.  2  King  v.  King,  1  Myl.  &K.  442. 


226  LAW   OF   VENDORS   AND   PURCHASERS.  [OTI.  XII. 

in  fact  but  eighty-six  acres.     Held,  the  whole  price  might  be 
recovered.^ 

40.  Agreement  to  sell  the  two  leases  and  good-will  in 
trade  of  a  public-house  and  slioj)  adjoining,  for  the  sum  of 
£4,250,  "  as  he  holds  the  same,"  for  terms  of  twenty-eight 
years  from  midsummer  next  ensuing,  at  the  annual  rent 
therein  mentioned.  The  purchaser  agreed  to  accept  a  proper 
assignment  of  the  said  leases  and  premises  as  above  de- 
scribed, without  requiring  the  lessor's  title ;  and,  upon  pay- 
ment of  said  sum,  the  vendor  agreed  to  execute  an  eflectual 
assignment  of  the  leases  and  deliver  possession  of  all  the 
said  premises.  Held,  the  vendee  was  bound  to  purchase  the 
two  leases,  without  inquiring  into  the  title  of  the  lessor,  and 
could  not  refuse  to  complete  his  purchase,  on  account  of  an 
objection  to  that  title.^ 

41.  A  condition  of  sale  was,  that,  in  case  the  purchaser 
should  raise  objections  to  the  title,  which  the  vendor  should 
not  be  able  or  willing  to  remove,  the  vendor  might  rescind 
the  contract,  on  notice,  and  repayment  of  the  deposit ;  objec- 
tions, not  delivered  within  fourteen  days  after  delivery  of  the 
abstract,  to  be  treated  as  waived,  in  which  respect  time  was 
to  be  essential.  The  purchaser  returned  the  abstract,  with 
queries,  within  the  fourteen  days,  and  the  vendor  answered 
the  queries ;  the  purchaser  on  the  same  day  objected  to  the 
answers ;  the  correspondence  on  the  subject  continued  for 
several  weeks,  and  then  the  vendor  gave  notice  that  he 
rescinded  the  contract.  Held,  the  continuance  of  the  treaty 
for  completion  of  the  title,  after  the  first  objection  of  the  pur- 
chaser, was  a  waiver  of  the  condition  as  to  the  rescinding ; 
that  such  a  condition  of  sale  ought  to  be  discouraged,  and 
not  to  receive  a  construction  oppressive  on  the  purchaser ; 
that  the  vendor's  right  to  rescind  must  be  coextensive  with 
the  purchaser's  right  to  object  to  the  title,  under  the  same 
condition  ;   that  the  vendor  was  only  bound  bond  fide  to 


Faure  v.  Martin,  3  Seld.  210.  *  Spratt  v.  Jeffery,  10  Barn.  &  Cress. 

249. 


CH.  XIT.]  TITLE   OF   THE   VENDOR.  227 

deliver  an  abstract  of  such  title  as  he  had  at  the  time  of 
delivering  it ;  and,  so  long  as  the  condition  remained  in  force, 
was  not  bound  to  deliver  any  supplemental  abstract  of  title 
afterwards  acquired.  It  was  doubted,  whether  the  benefit  of 
the  condition  would  not  in  equity  be  forfeited,  by  a  vendor 
who  designedly  delivered  an  imperfect  abstract  of  the  title 
which  he  had  at  the  time  of  delivering  it.^  So,  w^here  land 
had  been  purchased  under  a  decree  in  a  creditor's  suit,  the 
Court,  on  the  application  of  a  creditor,  who  had  for  four  years 
acquiesced  in  the  purchase,  and  who  was  not  supported  in 
his  objections  by  the  other  creditors,  refused  to  set  aside  the 
purchase,  on  the  ground  of  misdescription  of  the  land  in  the 
particulars  of  sale.^  So  specific  performance  will  be  decreed 
against  a  purchaser,  without  reference  as  to  the  title,  upon 
possession,  and  no  objection  made  to  the  abstract.^  So,  upon 
possession,  a  correspondence,  and  no  objection  to  the  title 
till  two  years  after  delivery  of  the  abstract.^  So  a  purchaser, 
after  long  possession  and  vexatious  objections  to  complete 
the  purchase,  was  held  to  have  waived  his  right  to  an  inves- 
tigation of  the  title,  and  decreed  to  perform  the  agreement 
specifically,  and  to  pay  interest  at  <£4  per  cent,  on  the  unpaid 
purchase-money  from  the  time  of  taking  possession,  and  the 
costs.^ 

42.  The  rule  above  stated,  however,  will  not  be  adopted 
in  all  cases.  Thus,  a  purchaser  was  held  entitled  to  an  in- 
vestigation of  the  title,  notwithstanding  possession  taken, 
acts  of  ownership  incident  to  possession,  and  preparation  of 
a  conveyance.^  So,  where  a  devisee  of  real  estate,  subject  to 
debts  and  legacies,  had  contracted  to  sell  the  estate,  in  order 
to  raise  money  to  pay  the  debts ;  and  afterwards  a  bill  was 
filed  against  her  by  the  legatees,  for  the  administration  of 
the  testator's  estates  ;  and  the  purchaser  consented  to  go 
before  the  master,  upon  a  reference  as  to  the  title  in  that 

1  Morley  v.  Cook,  2  Hare,  106.  *  Margravine,  &c.  v.  Noel,  1  Madd. 

2  Price  V.  North,  2  Y.  &  Coll.  620.  310. 

^  Fleetwood  v.  Green,  15  Ves.  594.  ^  Hall  v.  Laver,  3  You.  &  Coll.  191. 

^  Burroughs  v.  Oakly,  3  Swanst.  159. 


228  LAW    OF   VENDORS   AND    rUllCOASERS.  [cil.  XII. 

suit ;  held,  he  was  not  thcrehy  bound  to  take  an  equitable 
title,  but  might  insist  on  having  the  same  title,  as  he  might 
have  required,  in  a  suit  for  specific  performance ;  and  that,  as 
two  commissions  of  bankrupt  had  issued  against  the  devisee 
before  the  contract,  though  neither  of  them  was  proceeded  in, 
he  was  not  bound  to  accept  the  title.^  So,  where  the  con- 
ditions of  sale  provided,  that  all  objections  to  the  title  disclosed 
by  the  abstract,  not  taken  within  a  certain  time  after  its 
delivery,  should  be  deemed  to  be  waived  ;  held,  the  time  for 
objecting  was  not  to  be  computed  from  the  delivery  of  an 
imperfect  abstract;  and  an  objection  might  still  be  taken, 
which  arose  out  of  evidence  called  for  before  the  expiration 
of  the  time  fixed.^  So,  in  case  of  sale  under  a  decree,  the 
abstract  stated,  that  the  person,  at  whose  death  the  sale  was 
to  be  made,  proved  the  will  of  the  testator ;  but  it  did  not  state 
the  pleading  in  the  cause,  or  whether  that  person  was  living 
or  dead.  Held,  this  was  not  a  sufficiently  distinct  intimation 
to  the  purchaser,  that  the  time  of  sale  had,  without  any  suffi- 
cient ground,  been  anticipated/^  So,  a  contract  of  sale  de- 
scribed the  property  purchased  as  "  The  cottage  and  paddock 
comprising  1  a.  2  r.  8  p.  situate  at,  &c.,  described  in  the  par- 
ticulars as  lot  1."  The  description  of  lot  1  in  the  particulars 
was,  "  The  property  comprises  1  a.  2  r.  8  p.  situate,  &c.,  con- 
sisting of  a  cottage  and  paddock  in  the  occupation  of  Mr. 
P."  By  the  contract  of  sale,  the  title  and  conveyance  were 
to  be  completed  according  to  the  conditions  of  sale.  One 
of  these  was,  "  The  property  comprised  in  the  particulars  is 
presumed  to  be  correctly  described,  and  the  quantity  of  the 
land  shall  be  taken  as  stated,  whether  more  or  less  (although 
the  title-deeds  state  such  quantity  to  be  less)  without  any 
compensation  on  either  side.  And  no  other  evidence  of 
identity  shall  be  required  than  that  furnished  by  the  title- 
deeds,  and  the  statements  therein  shall  be  deemed  conclusive 
evidence  of  the  identity  of  the  property."     On  default,  the 

'  Cann  v.  Cann,  1  Sim.  &  Stu.  284.  ^  Blacklow  v.  Laws,  2  Hare,  40. 

2  Hobsont;.  Bell,  2  Beav.  17. 


CH.  XII.]  TITLE    OF   THE   VENDOR.  229 

deposit-money  was  to  be  forfeited.  The  vendor  delivered 
an  abstract  of  title  to  3  r.  22  p.  only.  Held,  this  did  not, 
under  the  circumstances,  authorize  the  purchaser  to  contend, 
that  the  title  had  not  been  made  according  to  the  conditions, 
and  that  he  was  bound  to  complete.^  So,  A.  bought  land  of 
.B.,  and  gave  his  bond  for  the  purchase-money,  conditioned 
to  be  paid  on  B.'s  making  a  clear  title  in  fee-simple.  B.'s 
agent  delivered  to  A.  a  deed,  on  its  face  in  fee-simple,  but 
there  were  incumbrances  on  the  land  unknown  to  A.  Held, 
A.  might  waive  his  right  to  a  deed  in  fee,  and  accept  a  title 
for  a  less  interest ;  that  whether  there  was  such  a  waiver, 
was  a  question  for  the  Court ;  that  there  must  be  unequivo- 
cal proof  of  it ;  and  the  record  of  the  judgment  lien  was 
not  notice  to  A.^ 

43.  W.  T.,  being  possessed  of  certain  copyhold  premises, 
mortgaged  the  same  to  P.,  and,  by  the  indenture  of  mort- 
gage, covenanted  to  surr^der  them  into  the  hands  of  the 
dean  and  chapter  of  W.,  the  lords  of  the  manor,  to  the  use 
of  the  defendant,  who  was  to  be  a  trustee  to  sell  upon  non- 
payment of  the  mortgage-money.  W.  T.  made  no  surren- 
der, but  died,  after  devising  all  his  real  property  to  certain 
trustees.  Subsequently,  the  lords  of  the  manor,  at  the  nom- 
ination of  the  defendant,  granted  the  property  to  certain 
persons  upon  the  above  trusts,  &c.  W.  T.,  in  his  life,  sur- 
rendered other  property  to  the  lords  of  the  manor,  by  way  of 
mortgage  to  C,  in  consideration  of  a  loan  of  XlOO,  and,  by 
W  an  indenture  of  even  date,  covenanted,  amongst  other  things, 
to  repay  the  money  borrowed,  and  gave  the  mortgagee  a 
power  of  sale,  upon  non-payment.  The  defendant  sold  the 
whole  property  to  the  plaintiff,  under  the  following  con- 
ditions :  that  he  should  deduce  a  good  title  to  the  premises 
for  the  lives  by  which  they  were  held  under  the  dean  and 
chapter  of  W.,  but  that  no  earlier  or  other  title  should  be 
deduced,  or  any  deed  or  document  produced,  anterior  to  the 
last  copy  of  the   Court-roll,  by  which  the    premises    were 

1  NichoU  V.  Chambers,  8  Eng.  Law        ^  Minor  v.  Edwards,  12  Mis.  137. 
&  Eq.423. 

20 


230         LAW  OF  VENDORS  AND  PURCHASERS.     [cn.  XII. 

granted.  Held,  the  defendant  showed  no  title  in  himself,  as 
no  surrender  of  the  premises  had  been  made  to  his  use  by 
W.  T.,  and  the  vendee  was  not  precluded  by  the  conditions 
from  making  this  objection  to  the  title,  as  it  appeared  on 
the  face  of  the  abstract  delivered.^ 

44.  The  objection  to  a  title  is  not  waived  by  the  premature 
conditional  approbation  of  the  purchaser's  counsel ;  but  the 
expense  of  making  out  the  title  before  this  objection  was 
taken  shall  be  repaid.^ 

45.  The  purchaser's  solicitor  wrote  to  the  vendor's  solici- 
tors, that,  unless  certain  proof  of  title  were  adduced,  the 
purchase  must  go  off.  Held,  the  purchaser  might  still  main- 
tain an  action  for  his  expenses  in  investigating  the  title.^ 

1  Sellick  V.  Trevor,  11  Mees.  &  Wels.        ^  Devcrell  v.  Bolton,  18  Ves.  505. 
722.  ^  Hall  V.  Betty,  5  Scott,  N.  R.  508. 


CH.  XIII.]  TITLE   TO   THE   PROPERTY   SOLD,   ETC. 


231 


CHAPTER  XIII. 


TITLE   TO   THE   PROPERTY   SOLD.      PARTIAL   FAILURE   OF   TITLE. 


1 .  Partial  defect  of  title,  what  consti- 
tutes. 

2.  When  it  is  no  ground  of  objection 
by  the  vendee. 

10.   Compensation  ioY  partial  failure  of 
title. 


14.  When  ground  for  rescinding  the 
sale. 

26.  Whether  the  vendor  may  object 
on  the  ground  of  deficiency  or  excess  in 
the  property. 


1.  Questions  often  arise,  as  to  the  effect  of  a  partial  failure 
of  title  to  the  property  sold.  Such  failure  may  apply  to  the 
interest  of  the  vendor  in  the  estate  itself,  as  where  he  owns 
less  than  a  fee  simple,  or  a  fee  simple  subject  to  incumbrance  ; 
or  to  the  amount  or  quantity  of  the  property,  as  where  only  a 
part  of  the  lands  sold  belongs  to  him.  And  it  may  depend 
upon  different  combinations  of  circumstances,  whether  the 
purchaser  shall  be  allowed  to  make  any  objection  on  these 
grounds  ;  whether  he  shall  be  restricted  to  a  proportional  de- 
duction from  the  agreed  price  ;  or  whether  he  may  at  his 
election  wholly  rescind  the  bargain. 

2.  As  has  been-  seen,  ( Chap.  12,)  Chancery  will  not  decree 
specific  performance  of  a  contract  to  purchase,  where  the  ven- 
dor is  unable  to  give  a  valid  title,  unless  it  appears  from  the 
contract,  that  the  understanding  of  the  parties  was,  that  the 
purchaser  should  take  the  risk  of  the  title.^  But  specific 
performance  will  be  decreed,  when  the  vendor  is  able  to  per- 
form his  agreement  in  substance,  although  there  is  a  trifling 
variation  in  the  description,  or  a  trifling  incumbrance  on  the 
title,  which  cannot  be  removed,  but  which  is  a  proper  subject 
of  compensation.  Thus  it  is  no  valid  objection  to  the  title, 
that  the  conveyance,  under  which  the  vendor  holds,  contains 

1  Winne  v.  Reynolds,  6  Paige,  407. 


232  LAW   OP   VENDORS   AND   PURCHASERS.  [CII.  XHI. 

a  reservation  of  mines  and  minerals  and  water  privileges,  if 
there  is  no  reason  to  suppose  they  exist.  So,  the  reservation 
of  a  pepper-corn,  or  any  other  rent  which  is  merely  nominal, 
is  not  a  valid  objection  to  the  title  of  the  vendor,  more 
especially  if  known  to  the  vendee ;  and  specific  performance 
will  be  decreed  without  compensation,  although  by  inistake 
of  the  scrivener  they  were  not  excepted  in  the  written  con- 
tract of  sale.  But  a  restriction  upon  the  power  of  alienation, 
or  the  reservation  to  the  original  owner  of  a  preemptive  right 
of  purchase  for  a  certain  time,  is  an  incumbrance,  which 
diminishes  the  value  of  the  title.  And  a  purchaser  without 
notice  will  not  be  compelled  to  take  the  premises,  subject 
thereto,  without  a  proper  allowance. 

8.  The  vendor  of  a  farm  in  the  manor  of  Rensselaerwick, 
held  under  a  lease  at  a  nominal  rent  of  a  pound  of  wheat, 
with  a  reservation  of  mines  and  minerals,  and  water  priv- 
ileges, and  a  preemptive  right  of  purchase ;  covenanted  to 
give  the  purchaser  a  good  and  lawful  deed.  Held,  the  rent 
was  no  objection  to  the  title ;  and,  there  being  no  mines  or 
minerals  or  water  privileges  on  the  premises,  and  the  lessor 
having  agreed  to  relinquish  his  preemptive  right,  of  which 
the  vendee  had  notice  at  the  time  of  sale,  a  specific  perform- 
ance was  decreed.^ 

4.  Agreement,  to  sell  and  assign  "  the  unexpired  term  of 
eight  years'  lease  and  good-will "  of  a  public-house.  Held, 
the  purchaser  could  not  refuse  to  perform  the  agreement,  on  the 
ground  that,  when  it  was  entered  into,  there  were  only  seven 
years  and  seven  months  of  the  term  unexpired.^  So  a  pur- 
chaser is  not  entitled  to  abatement  for  a  deficiency  in  quan- 
tity, where  the  particulars  describe  the  estate  as  containing 
by  estimation  a  certain  number  of  acres,  be  the  same  more 
or  less.^  More  especially  where  the  purchase  is  made  by 
metes  and  bounds,  estimated  to  contain  a  specific  quantity, 
or  "  for  more  or  less,"  and  a  gross  sum  to  be  paid  for  the 

1  Winne  v.  Reynolds,  6  Paige,  407.  **  Winch  v.  Wincliester,  1  Veaz.  &  B. 

2  Belworth  v.  liassell,  4  Camp.  Ca.     375. 
140. 


CH.  XIII,]  TITLE    TO    THE    PROPERTY    SOLD,   ETC.  233 

entire  tract ;  and  the  land,  at  the  time  of  purchase,  is  of  equal 
value  to  the  price  paid ; — unless  there  is  some  misrepresenta- 
tion or  concealment.^  So,  where  land  is  sold  at  auction  in 
separate  lots,  and  several  are  purchased  by  one  person,  this  is 
not  an  entire  contract ;  and,  though  the  vendor  cannot  give  a 
title  as  to  all  the  lots,  the  vendee  cannot  rescind  the  agreement 
in  toto,  but  must  take  a  conveyance  of  the  rest.^  (See  p.  243.) 
So  the  vendor  of  a  large  tract,  consisting  of  various  parcels,  as 
surveyed  by  the  government,  at  a  gross  price,  and  not  by 
the  acre ;  and  guilty  of  no  fraudulent  concealment ;  is  not 
liable  for  any  deficiency  of  quantity.'^  So,  where  a  specified 
tract  is  sold  for  a  sum  in  gross,  the  boundaries  control  the 
description  of  the  quantity ;  and  neither  party  can  have  a 
remedy  against  the  other,  for  an  excess  or  deficiency  in  the 
quantity ;  unless  it  is  so  great  as  to  furnish  evidence  of  fraud 
or  misrepresentation.  Otherwise,  where  the  mistake  is  in 
the  boundaries,  and  not  in  the  quantity.  So  where  the  defi- 
ciency is  not  in  the  thing  described,  but  in  the  ability  of  the 
defendant  to  convey  the  thing  described.^ 

5.  A.  sold  to  B.  three  quarter  sections  of  land  for  $1,000 
each,  and  gave  him  a  title-bond  for  two  hundred  and  eighty 
acres,  and  a  deed  for  the  balance.  B.  gave,  for  the  price, 
three  notes,  for  $1,000  each,  payable  at  different  times  ;  the 
two  first  absolutely,  and  the  last  on  condition  of  receiving  a 
full  title.  A.  afterwards  conveyed  one  hundred  and  twenty 
acres,  transferred  all  the  notes  'for  value,  became  insolvent, 
and  left  the  State  without  making  or  being  able  to  make 
title  to  the  remaining  quarter  section.  Held,  the  condition 
of  the  last  note  operated  as  an  indemnity  against  any  dam- 
age arising  to  B.  from  not  receiving  such  title ;  and,  as  the 
title  was  not  proved  defective,  that  the  bond  fide  payment  by 
B.  of  the  note  first  due,  and  afterwards  of  the  conditional 
note,  with  notice  of  the  transfer  of  the  second  note,  did  not 
entitle  him  to  relief  in  equity  against  the  latter  note.-^ 

1  Ketchum  v.  Stout,  20  Ohio,  453.  ^  Terrell  v.  Kirksey,  14  Ala.  209. 

'  -  Van  Eps  v.  Scheuectady,  12  Johns.  *  Voorhees  v.  De  Meyer,  2  Barb.  .37. 

436,  ^  Graham  v.  Nesmith,  18  Ala.  763. 
20* 


234  LAW  OF  VENDORS  AND  PURCIUSERS.     [CH.  XHI. 

6.  Copyhold  and  freehold  lands,  lying  intermixed  and  un- 
distingnishablc,  were  sold,  with  the  tim])er.  The  vendor  was 
not  to  be  bound  to  distinguish  the  freeholds  from  the  copy- 
holds, and  the  timber  was  to  be  taken  at  a  specified  valuation 
of  the  timber  on  each  lot.  A  deposit  was  paid  of  £10  per 
cent.  It  was  also  stipulated,  that,  in  case  of  delay  in  the 
completion  of  the  purchase,  interest,  at  £5  per  cent.,  should 
be  payable  on  the  whole  price.  Held,  an  entire  contract, — 
not  two  contracts,  one  for  the  sale  of  land,  and  another  of 
timber.^  Also,  that  the  purchaser  was  not  entitled  to  any 
abatement,  though  he  could  not  cut  a  single  tree,  not  being 
able  to  distinguish  any  one  tree  as  standing  on  freehold 
ground.  Also,  that  in  case  of  one  lot  sold  under  the  same 
conditions  and  particulars,  and  which  consisted  entirely  of 
copyholds,  the  purchaser  was  equally  bound  to  pay  the  stip- 
ulated price  for  the  timber,  although  he  could  not  cut  any 
of  it.2 

7.  An  estate,  consisting  of  fen  land,  and  so  described  in 
the  particular  of  sale,  was  charged  by  a  local  but  public  act 
of  Parliament  with  drainage  and  embanking  taxes,  of  which 
the  purchaser  had  no  express  notice.  Held,  that  he  was  not 
entitled  to  a  compensation  for  those  taxes.^  So  an  injunction 
was  granted,  to  stay  an  action  against  the  auctioneer  for  the 
deposit,  although  the  estate  sold  was  represented  as  freehold, 
and  turned  out  to  be  almost  all  leasehold,  and  although  there 
had  been  great  delay  in  making  out  the  plaintiff's  title.^ 

8.  A  piece  of  ground  being  sold  at  auction,  according  to 
certain  metes  and  bounds,  which  were  shown  to  the  pur- 
chaser before  his  purchase,  be  the  same  more  or  less  ;  he  is 
not  entitled  to  compensation  for  a  deficiency ;  although  the 
previous  advertisement  described  the  tenement  as  contain- 
ing more  than  the  actual  quantity.  So,  notwithstanding  a 
subsequent  agreement  under  seal,  (written  by  the  purchaser, 
and  signed  by  the  vendor,  for  the  purpose  of  binding  the 

1  Crosse  v.  Lawrence,  10  Eng.  Law  &  ^  Barrandos  v.  Archer,  2  Simons,  433. 
Eq.  R.  7.  4  Fordyce  v.  Ford,  4  Bro.  C.  C.  494. 

2  Ibid.  But  see  Drcwe  v.  Corp,  9  Ves.  368. 


CH.  XIII.]  TITLE  TO   THE  PROPERTY   SOLD,   ETC.  235 

vendor  to  make  a  title,)  in  which  the  terms  of  sale  are  referred 
to,  but  the  quantity  mentioned  in  the  advertisement  is  speci- 
fied, omitting  the  words  "  more  or  less ; "  the  vendor  may 
still  prove  the  terms  of  sale  by  parol  testimony.^ 

9.  Trustees  for  sale  of  a  manor  described  it  in  advertise- 
ments, and  particulars  and  conditions  of  sale,  as  a  manor  in 
which  the  fines  were  arbitrary ;  adding,  that  the  clear  profits, 
on  an  average  of  the  last  eight  years,  had  been  £150  per 
year ;  and  it  was  one  of  the  conditions  of  sale,  that  if  there 
should  be  any  error  or  misstatement  in  the  particulars,  the 
vendors  or  purchaser,  as  the  case  might  happen,  should  pay  or 
allow  a  proportionate  value,  according  to  the  average  of  the 
whole  purchase-money,  as  a  compensation  either  way.  After 
the  sale,  it  was  found  that  by  the  custom  of  the  manor,  arbi- 
trary fines  were  payable  only  on  alienation,  and  that  on  the 
death  of  a  tenant,  his  customary  heir  paid,  upon  admittance, 
a  small  fixed  sum,  and  the  widow  was  admitted  to  her  free 
bench  without  any  payment.  It  was  also  found  that  the 
clear  profits  exceeded  X200  a  year.  Held,  (on  a  bill  by  the 
purchaser  for  specific  performance,  with  compensation  in 
respect  of  the  misstatement  as  to  the  fines,)  he  could  not 
claim  compensation,  inasmuch  as  the  annual  profits,  which 
constituted  the  substantial  value,  far  exceeded  the  amount 
stated.^ 

10.  Although  a  court  of  equity  does  not  ordinarily  exer- 
cise its  jurisdiction  by  awarding  damages,  yet  in  the  class  of 
cases  now  under  consideration,  for  the  purpose  of  effecting 
substantial  justice  between  the  parties,  it  sometimes  departs 
from  its  usual  course  of  procedure,  and,  instead  of  rescind- 
ing a  contract  for  partial  failure  to  fulfil  it,  seeks  to  indem- 
nify the  purchaser  by  decreeing  a  fair  and  equitable  compen- 
sation for  his  loss.  It  has  been  said,  the  plaintiff"  in  a  bill  for 
specific  performance  is  not  entitled,  generally,  to  damages 
for  non-performance,  to  be  ascertained  by  an  issue,  or  a  refer- 

1  Grantland  v.  Wight,  2  Munf.  179.  ^  White  v.  Caddon,  8  Clark  &  Fin-. 

nelly,  766. 


23G  LAW   OF   VENDORS   AND   PURCHASERS.  [cil.  XIII. 

ence  to  the  master.^  But  the  prevailing  doctrine  now  is, 
that  specific  performance  will  be  decreed  upon  the  princi- 
ple of  comjiensalion  and  indemnily,  where  there  is  no  substan- 
tial deviation  from  the  contract.^  Thus  a  small  incumbrance, 
which  may  be  the  subject  of  compensation,  is  no  objection 
to  a  specific  performance.'^  So  quit  rents,  being  incidents  of 
tenure,  are  proper  subjects  of  compensation.  It  has  been 
doubted  whether  the  same  principle  applies  to  rent  charges^ 
which  are  not  incidents  of  tenure  ;  though  the  Court  has 
allowed  them,  when  small,  to  be  subjects  of  compensation.* 
So,  if  there  be  a  small  deficiency  in  the  land,  a  reference 
may  be  made  to  the  master  to  ascertain  it,  and  report  the 
value.^  So  where  the  objection  by  a  purchaser  applies  only 
to  a  small  part  of  the  estate.^  Thus,  where  a  tenant  in  pos- 
session purchased  the  property,  which  was  represented  to  be 
forty-six  feet  in  depth,  but  turned  out  to  be  thirty-three 
only :  Held,  he  was  entitled  to  an  abatement."  So  where 
the  title  is  good  except  as  to  a  small  portion,  the  loss  of 
which  would  not  materially  affect  the  value  of  the  rest ; 
equity  will  not  rescind  the  contract,  but  will  credit  upon  the 
bonds  the  value  of  such  portion.^  So  a  purchaser  of  two  lots 
cannot  refuse  to  take  one,  because  a  good  title  is  not  shown 
to  the  other.9  So  the  general  rule  of  specific  performance, 
that  the  purchaser  shall  have  what  the  vendor  can  give,  with 
an  abatement  of  price  for  deficiency  in  the  quantity,  was  en- 
forced against  trustees  for  infants,  upon  the  mere  mistake  of 
their  agent,  without  fraud,  &c. ;  but  the  relief  adapted  to  the 
justice  of  the  case,  viz :  the  purchase  being  of  wood  upon  a 
gross  valuation,  without  regard  to  the  quantity  of  land,  an 
abatement  for  a  deficiency  of  quantity,  from  erroneously  in- 
serting the  hedges  and  fences  not  included  in  the  purchase, 

1  Todd  V.  Gee,  17  Ves.  273.  ^  M'Queen  v.  Farquhar,  11  Ves.  467. 

2  Hornihlow  v.  Shirley,  13  Ves.  81  ;  "^  King  v.  Wilson,  6  Beav.  124. 
Dyer  v.  Hargrave,  10  Ves.  505.  ^  Tomliason  v.  Savage,  6  Ii-ed.  Eq. 

3  Guest  V.  Homfray,  5  Ves.  818.  430. 

*  Esdaile  v.  Stephenson,  1  Sim.  &  Stu.        ^  Lewin  v.  Guest,  1  Russ.  325.     See 
.  122.  Roots  V,  Dormer,  4  Baru.  &  Ad.  77. 

5  Cannon  v.  Mitchell,  2  Desaus.  320, 


CH.  XIII.]  TITLE   TO   THE   PROPERTY   SOLD,   ETC.  237 

was  directed  with  reference  to  land  merely,  not  wood-land.^ 
So,  where  there  was  a  defect  of  title  to  a  small  piece  of  land, 
over  which  lay  the  approach  to  a  house  and  other  land,  the 
main  subject  of  purchase ;  and  the  contract  provided  for  com- 
pensation, in  case  of  any  omission  or  mistake  in  the  descrip- 
tion ;  held  matter  of  compensation.^  So,  in  case  of  a  con- 
tract to  purchase  lots,  to  two  of  which  a  title  could  not  be 
made,  and  the  others  having  deteriorated  in  value ;  if  the 
value  of  the  remaining  lots  is  not  affected  by  that  deteriora- 
tion, a  specific  performance  shall  be  decreed  as  to  all  but 
two.3  So  where  there  was  an  auction  sale  of  lots,  under 
condition  that  they  were  subject  to  the  perpetual  payment  of 
X120  a  year  to  the  curate  of  N.,  but  that  this,  and  the  per- 
petual annual  payment  of  ,£20  to  the  hospital  of  C,  were  in 
future  to  be  charged  upon  and  paid  by  the  purchaser  of  lot  1 
only ;  held,  the  purchasers  of  the  other  lots  were  entitled, 
not  to  an  absolute  discharge,  but  to  an  indemnity  from  the 
purchaser  of  lot  1.*  So  where  it  is  provided  by  the  condi- 
tions of  sale  by  auction,  that,  if  any  mistake  be  made  in  the 
description  of  the  premises,  or  any  other  material  error  shall 
appear  in  the  particulars  of  sale,  such  mistake  or  error  shall 
not  annul  the  sale,  but  a  compensation  shall  be  made ;  the 
vendee  is  not  released  by  a  misdescription  in  the  particulars, 
obvious,  on  inspection  of  the  premises,  unless  wilful  and  de- 
signed.^ So  an  advertisement  described  the  estate  as  all 
freehold,  though  a  small  part  was  held  at  will :  after  execu- 
tion of  articles,  a  treaty  for  an  exchange  of  that  part  took 
place  ;  pending  which,  at  the  time  appointed  for  completing 
the  purchase,  the  purchaser  took  possession  forcibly ;  but 
proceeded  in  the  treaty  afterwards,  till  he  finally  refused  to 
agree  to  the  purchase.  On  a  bill  of  the  vendor,  the  purchase- 
money  was  decreed  to  be  paid,  with  four  per  cent,  from  the 

1  Hill  V.  Buckley,  17  Ves.  394.  *  Cassamajor  v.  Strode,  1  Wils.  Cha. 

2  Freer  v.  Hess,  17  Eng.  Law  &  Eq.     Ca.  428  ;  2  Swanst.  347. 

154.  5  Wright  v.  Wilson,  1  Moo.  &,  Eob. 

3  Poole  V.  Shergold,  2  Bro.  C.  C.  118  ;     207. 
1  Cox,  273. 


238  LAW   OF   VENDORS    AND    rURCnASERP.  [CH.  XIII. 

time  it  ouglit  to  be  paid  ;  bnt  an  inquiry  was  directed,  what 
ought  to  have  been  the  compensation  at  that  time,  that,  with 
the  outgoing,  to  be  deducted.^  So  it  has  been  held,  that  where 
part  of  the  premises  are  subject  to  tithes,  though  represented 
as  tithe-free  ;  the  purchaser,  if  he  cliooses  to  take  the  pur- 
chase, has  a  right  to  compensation,  but  not  to  compel  the 
vendor  to  purchase  the  tithes.^  In  another  case  it  is  de- 
cided, that  the  purchaser  of  an  estate,  sold  as  tithe-free,  can- 
not be  compelled  to  take  it  subject  to  tithe,  on  terms  of  com- 
pensation ;  but,  an  estate  of  an  hundred  and  forty  acres  being 
sold  under  a  decree,  and  the  particulars  stating  about  thirty- 
two  acres  to  be  tithe-free,  and  no  evidence  of  exemption  hav- 
ing been  produced  on  the  reference  of  the  title,  the  master 
was  directed  to  certify  the  proper  amount  of  compensation.^  (a) 
So  specific  performance  of  a  sale  was  decreed,  with  compensa- 
tion, notwithstanding  a  variance  from  the  description,  though 
a  minute  examination  might  have  discovered  the  defects  ;  as 
in  the  state  of  the  house  and  the  cultivation  of  the  land. 
Otherwise  as  to  a  variance  from  the  description,  as  lying 
unthin  a  ring-fence ;  this  being  an  object  of  sense ;  and,  upon 
the  evidence,  the  purchaser  being  apprised  of  it.^  So  a  res- 
ervation of  salt-works,  mines,  &c.,  in  1704,  with  a  right  of 
entry,  though  there  was  no  instance  of  any  claim,  and  the 
title  had  been  transferred  in  1761,  without  such  reservation, 
upon  the  usual  covenants ;  was  held  an  objection,  giving  a 
right  to  compensation ;  the  purchaser  not  insisting  upon  it 
further.^ 

1  Calcraft  r.  Eoebuck,  1  Ves.  221.  *  Dyer  v.  Hargrave,  10  Ves.  505. 

2  Todd  V.  Gee,  17  Ves.  273.  &  Seaman  v.  Vawdrey,  16  Ves.  390, 

3  Binks  V.  Rokcby,  12  Swanst.  226. 


(a)  Even  where  the  principal  subject  of  contract  was  all  the  corn  and 
hay  tithes  of  a  parish,  and  half  of  the  latter  was  allotted  to  the  vicar,  and 
the  other  half  commuted  for  a  customary  payment ;  the  nature  of  that  pay- 
ment, the  extent  of  meadow,  and  the  possible  conversion  from  arable,  not 
distinctly  appearing,  the  injunction  against  recovering  the  deposit  was  con- 
tinued after  answer.    Drewe  v.  Hanson,  6  Ves.  676. 


CH.  XIII.]  TITLE   TO   THE   PROPERTY    SOLD,   ETC.  239 

11.  By  the  particulars  of  a  sale  by  auction,  at  which  the 
defendant  was  declared  the  purchaser  of  lots  1,  2,  3,  and  4 ; 
lot  1  was  described  as  comprising  seventy  acres,  twenty-four 
perches,  more  or  less,  and  lots  2,  8,  and  4,  as  comprising  to- 
gether three  hundred  and  twenty-one  acres,  two  roods,  thirty 
perches,  more  or  less  ;  and"  by  the  conditions  of  sale  it  was 
provided,  amongst  other  things,  that  any  mistake  or  error  in 
the  description  of  the  property  should  not  annul  the  sale,  but 
should  be  the  subject  of  compensation,  to  be  given  or  taken, 
as  the  case  might  require.  A  map  or  plan  was  annexed  to 
the  particulars,  in  which  the  different  lots  were  distinguished 
by  different  colors.  After  the  sale  it  was  found,  that  lot  1 
comprised  eighty-nine  acres,  and  twenty-nine  perches,  and 
lots  2,  3,  and  4,  only  three  hundred  and  ten  acres,  three  roods, 
and  eighteen  perches.  The  error  had  arisen  from  the  adop- 
tion of  a  former  surveyor's  report.  Held,  the  purchaser  was 
bound  to  make  compensation  to  the  vendors,  on  account  of 
lot  1,  and  entitled  to  receive  compensation  on  account  of 
lots  2,  3,  and  4.i 

12.  A  vendor  agreed  to  sell  and  convey  "  lots  Nos.  9  and 
11  in  No.  20  in  great  lot  No.  34,  one  hundred  and  eighty- 
seven  and  a  half  acres  for  $750  ;"  supposing  that  lot  No.  11 
contained  one  hundred  and  forty-three  and  a  half  acres  ;  but 
through  an  error  of  the  surveyor,  who  subdivided  great  lot 
No.  34,  in  extending  his  survey  beyond  the  north  boundary 
of  that  lot,  whereby  he  included  with  lot  No.  11  of  his  sub- 
division forty-three  and  a  half  acres  of  a  gore  lying  north  of 
that  lot ;  lot  No.  11  really  contained  but  one  hundred  acres, 
and  the  quantity  embraced  in  lots  9  and  11  fell  short  of  the 
agreement  forty-three  and  a  half  acres  ;  by  reason  of  which 
error,  the  vendor  was  unable  to  make  a  good  title  to  the 
whole  quantity  of  land.  On  a  bill  by  the  assignees  of  the 
vendor  for  specific  performance  ;  held,  that  it  was  a  case  of 
mutual  mistake,  in  relation  to  the  quantity  of  land  contained 
in  the  two  lots  ;  and  a  decree  was  made,  directing  a  specific 

1  Leslie  v.  Tompson,  5  Eng.  Law  &  Eq.  E.  166. 


240  LAW  OF  VENDORS  AND  PURCHASERS.     [CH.  XHI. 

performance,  by  the  vendor,  so  far  as  he  was  able  to  perform, 
and  providing  for  an  abatement  from  the  purchase-money 
on  account  of  the  deficiency.^ 

13.  A  contract  having  been  made  for  sale  of  an  estate,  it 
afterwards  appeared  that  there  were  several  out-goings  from 
the  estate,  which  were  not  disclosed  :  yet,  being  matters 
which  lie  in  compensation,  held,  the  contract  should  be  exe- 
cuted, with  an  allowance.^  So  compensation  was  decreed 
for  the  dry  rot  in  a  house  and  premises,  upon  representations 
of  the  vendor  to  the  purchaser  as  to  the  state  of  repairs;  he 
relying  upon  such  representations,  and  stating  to  the  vendor 
that  he  did  not  employ  a  surveyor,  for  that  reason.^  So 
where  a  tract  of  land  is  sold,  as  containing  a  given  quantity 
of  acres,  but  really  includes  a  less  quantity ;  a  deduction  will 
be  made ;  unless  the  deficiency  be  such,  as  would  have  pre- 
vented the  contract,  if  known  at  the  time  of  the  purchase ; 
that  is,  the  deficiency  appearing  to  be  in  that  part  which 
was  the  chief  inducement  to  purchase.* 

14.  Although  the  rule  above  stated  seems  to  be  well 
established  by  the  weight  of  authority ;  it  has  been  held  in 
some  cases,  that  equity  will  not  compel  a  specific  perform- 
ance, unless  the  vendor  can  make  a  good  title  to  all  the  land 
soldJ'  A  purchaser  is  said  to  be  entitled  to  the  specific  real 
estate  which  he  contracts  for,  and  not  to  be  compellable  by 
a  Court  of  Chancery  to  accept  a  part  only,  with  a  compen- 
sation for  the  deficiency.^  As,  for  instance,  to  take  six  un- 
divided seventh  parts  of  an  estate,  when  he  has  contracted 
for  the  entirety.''  Or,  it  seems,  nine  sixteenths  instead  of 
the  entirety ;  especially  where  there  is  a  lien  on  the  estate 
for  a  debt  nearly  equal  to  the  whole  of  the  purchase-money.^ 
So,  in  case  of  a  purchase  under  a  decree  of  two  sevenths  of 
an  estate  in  one  lot ;  there  being  a  good  title  to  only  one  one 

1  Voorheesz;.  DeMeyer,  2  Barb.  37.       275;  Finley   v.   Lynch,    2   Bibb,  566; 

2  Howland  ,-.  Norris,  1  Cox,  59.  Tyrec  v.  Williams,  3  Bibb,  366. 

^  Grants.  Munt,  Coop.  173.  '^  Cunningham  v.  Sharp,  11  Humph. 

*  Anderson  v.  Foulkc,  2  Harr.  &  G.  116. 
346 ;  Kctchum  v.  Stout,  20  Ohio,  453.  "  Dalby  v.  Pullcn,  3  Sim.  29. 

°  Hepburn  v.  Auld,  5  Cranch,  262,        ^  Wheatley  v.  Slade.  4  Sim.  126. 


CH.  Xni.]     TITLE  TO  THE  PROPERTY  SOLD,  ETC.  241 

seventh.  Held,  the  purchaser  was  not  bound.'  So,  where  a 
contract  was  made  to  convey  ten  lots  of  land,  and  a  tender 
of  a  deed  for  eight  whole  lots,  and  an  equal  undivided  half 
of  four  other  lots ;  held,  not  a  performance.^  So,  although 
admitted  to  be  generally,  though  not  universally  true,  that  a 
purchaser  may  take  what  he  can  get,  with  compensation  for 
what  he  cannot  have  ;  it  has  been  questioned  whether  that 
is  ever  done,  without  an  express  undertaking  on  his  part,  to 
do  what  the  Court  shall  order.^  So,  it  is  said,  the  doctrine 
of  compensation  has  been  carried  too  far.  It  is  not  to  pre- 
vail, unless  the  party  will  substantially  have  that,  for  which 
he  contracted."*  So,  that  small  mistakes  or  inaccuracies  in  a 
contract  are  the  subject  of  compensation ;  but  that  has  been 
extended  to  a  great  length.^ 

15.  In  some  cases,  as  has  been  seen,  the  Courts  have  laid 
down  certain  principles,  upon  which  they  will  proceed,  in 
determining  whether  a  purchaser  is  entitled  to  a  partial  per- 
formance of  the  contract,  with  compensation  for  the  de- 
ficiency, where  the  vendor  has  only  a  limited  interest  in  the 
estate  sold.^  In  other  cases,  the  Courts  strongly  set  forth  the 
difficulty  of  decreeing  a  partial  performance  in  such  case." 
It  is  held,  however,  that  the  Court  will  not  upon  motion 
determine,  whether  several  lots,  forming  part  of  one  estate 
and  bought  at  the  same  sale  by  one  purchaser,  are  or  are 
not  so  intimately  connected  in  use  and  enjoyment,  that  the 
failure  of  title  as  to  one  will  furnish  a  defence  against  specific 
performance  as  to  the  rest.  Such  an  objection  raises  a  ques- 
tion of  facts,  which  ought  either  to  be  put  in  issue  upon  the 
pleadings,  or  be  the  subject  of  a  special  reference  to  the 
master.^  So,  it  is  held,  that  the  Court  must  be  affirmatively 
and  clearly  satisfied,  that  compensation  will  effect  substan- 
tial justice,  before  making  a  decree  therefor.     Thus,  a  bill 

1  RofFeyu.  Shallcross,  4  Madd.  227.  ^  Mortlock  v.  Biiller,  10  Ves.  292. 

2  Roy  i;.  Willink,  4  Sandf.  Ch.  525.  ^  Thomas  v.  Dering,  1  Kee.  729. 
^  Patoti  V.  Rogers,  1  Ves.  &  Beam.         "  Graham  u.  Oliver,  3  Beav.  124. 

351 ;  Halsey  v.  Grant,  13  Ves.  75.  "^  Cassamajor   v.   Strode,    2  MyL  & 

*  Alley  V.  Deschamps,  13  Ves.  225.       Kee.  724. 

21 


242  LAW    OF    VENDORS   AND    PURCHASERS.  [CH.  XIII. 

was  filed  for  specific  performance  of  a  contract  for  an  ex- 
change of  lands,  which  the  defendant  had  refused  to  perform, 
on  the  ground  of  want  of  title  to  a  small  proportion  of  the 
land  agreed  to  be  conveyed  to  him.  The  plaintiff  tenders  a 
full  and  adequate  compensation,  to  be  ascertained  by  refer- 
ence to  the  master.  General  demurrer,  for  want  of  equity. 
Demurrer  allowed,  because  the  bill  did  not  clearly  show, 
that  the  subject-matter  of  the  suit  was  one  palpably  and 
obviously  matter  for  compensation,  and  capable  of  being 
compensated.^  So,  where  a  party,  acting  as  the  absolute 
owner  of  property,  and  being  absolute  owner  of  part,  and 
of  the  other  part  only  tenant  for  life,  with  a  power  of  sale, 
at  his  request  and  by  his  direction,  vested  in  trustees,  con- 
tracted to  sell  the  whole  ;  upon  a  bill  by  the  purchaser  for 
specific  performance,  an  inquiry  was  directed,  "  whether  the 
defendant  could  make  a  good  title,  or  could,  by  application 
to  the  trustees,  procure  a  good  title  to  be  made."  ^ 

16.  In  conformity  with  these  views,  it  has  been  held  that 
specific  performance  will  not  be  decreed  upon  the  principle 
of  compensation  and  indemnity,  in  case  of  misdescription 
of  the  quantity  of  land,  in  regard  to  the  acres  being  statute 
acres  or  customary.  This  is  not  matter  of  compensation, 
but  a  ground  for  setting  aside  the  sale.^  So,  no  compensa- 
tion will  be  ordered  in  a  case  of  great  intentional  misrepre- 
sentation ;  although  so  provided  by  the  conditions  of  sale,  in 
case  of  "  any  error  or  mistatement "  in  the  particulars.* 

17.  By  particulars  of  sale,  lot  13  was  described  as  build- 
ing ground,  and  the  adjoining  lot  12  as  a  villa,  subject  to 
liberty  for  the  purchaser  of  lot  1  to  come  on  the  premises,  to 
repair  drains,  &c.,  as  reserved  in  lot  7.  The  reservation  in 
lot  7  referred  to  a  lease,  which  gave  the  occupier  of  that  and 
several  adjoining  lots,  composing  a  row  of  houses,  a  carriage 
way  in  common,  in  front  of  the  lots,  and  a  footway  at  the 
back,  and  also  a  footway  over  lot  13.     The  particulars  con- 

1  Bowyer  v.  Bright,  13  Price,  698.  »  Price  v.  North,  2  Y.  &  Coll.  620. 

a  Graham  v.  Oliver,  3  Beav.  124.  *  Stewart  v.  Attiston,  1  Meri.  26. 


CH.  xiil]         title  to  the  property  sold,  etc.  243 

tained  plans,  showing  the  carriage-way  and  the  footway  at 
the  back,  but  not  that  over  lot  13.  But  they  stated  that  the 
lease  of  lot  7  might  be  seen  at  the  vendor's  office,  and  would 
be  produced  at  the  sale.  Plaintiff  having  purchased  lots  12 
and  13  by  one  contract,  in  ignorance  of  the  footway  over 
lot  13  ;  held,  he  might  rescind  the  contract.^ 

18.  A.  paid  a  deposit  upon  a  contract  for  the  purchase  of 
the  lease,  &c.,  of  a  public  house.  It  being  afterwards  dis- 
covered that  the  house  was  comprised  with  another  in  an 
original  lease,  under  which  the  lessor  had  a  right  to  reenter 
for  breach  of  covenants,  in  respect  of  either  house ;  held, 
that  A  was  not  bound  to  accept  the  title  with  an  indemnity, 
but  might  recover  back  the  deposit  and  expenses  of  investi- 
gating the  title.2 

19.  So  the  purchase  of  several  lots  at  an  auction  by  one 
person,  is  an  entire  contract;  especially  if  adjoining,  and 
more  conveniently  occupied  together ;  and,  if  the  seller  fails 
in  making  a  title  to  any  one  of  them,  the  purchaser  may 
rescind  for  the  whole.^  (See  p.  233.)  So,  it  seems,  where 
one  person  is  reported  purchaser  of  several  lots  before  the 
master,  if  the  biddings  are  opened  as  to  one,  he  shall  have 
an  option  to  open  them  as  to  all.*  So,  the  defendant  having 
sold  and  conveyed  land  to  the  plaintiff,  suggesting  that  he 
had  a  title,  but  in  fact  not  being  entitled  to  a  part,  the  same 
being  an  encroachment  from  a  common  ;  though  no  eviction 
has  happened  or  been  threatened,  a  bill  lies  to  set  aside  the 
conveyance,  and  for  a  return  of  the  purchase-money  and  all 
expenses.^  So,  specific  performance  of  a  purchase  was  re- 
fused, no  good  title  being  made  to  a  part  of  the  estate, 
which,  though  very  small  in  proportion  to  the  whole,  was 
essential  to  its  enjoyment ;  and  the  defendant,  who  was  let 
into  possession,  being  afterwards  turned  out  by  the  plaintiffs.^ 

20.  So  it  has  been  held,  that  a  purchaser  cannot  be  com- 

1  Dykes  v.  Blake,  4  Bing.  N.  C.  463.  *  Boyer  v.  Blackwell,  3  Anstr.  657. 

2  Blake  v.  Phinn,  3  Mann.  Grang.  &  ^  Edwards  v.  M'Leay,  Coop.  318. 
Scott.  976.  '^  KnatchbuU  v.   Grueber,    1    Madd. 

3  Chambers  v.  Griffiths,  1  Esp.  Ca.  153. 
149  ;  Gibson  v.  Spurrier,  Peake,  49. 


244  LAW    OF   VENDORS   AND   PURCIIASERR.  [CH.  XIII. 

pelled,  upon  the  principle  of  compensation,  to  take,  under  a 
contract  for  a  freehold  estate,  a  leasehold,  though  a  very  long 
term.^  So,  the  Court  refused  to  decree  specific  performance 
of  an  agreement,  made  twelve  years  before  the  hearing,  to 
purchase  the  fee-simple  of  certain  lands,  and  also  the  right 
to  impound  the  water  of  a  river,  and  divert  a  stream  from  it, 
because  the  vendor,  though  seised  in  fee  of  the  lands,  had 
only  a  lease  for  ninety-nine  years  of  the  other  subjects  of 
the  contract,  and  had  not,  as  against  some  of  the  proprietors 
of  land  on  the  banks  of  the  river,  a  right  to  divert  the  water ; 
and  because  the  purchaser  had  entered  into  the  contract,  for 
the  purpose  of  erecting  a  manufactory  to  be  wrought  by  the 
water.'^ 

21.  Sale  of  a  leasehold  interest,  described  in  the  particulars 
as  held  for  a  term  of  twenty-three  years,  at  a  rent  of  £55, 
and  as  comprising  a  yard.  One  of  the  conditions  was,  that, 
if  any  mistake  should  be  made  in  the  description,  or  any 
other  error  whatever  should  appear  in  the  particulars  of  the 
estate,  such  mistake  or  error  should  not  annul  or  vitiate  the 
sale,  but  a  compensation  should  be  made,  to  be  settled  by 
arbitration.  The  yard  was  not,  in  fact,  comprehended  in  the 
property  held  for  the  term  at  £55,  but  from  year  to  year,  at 
an  additional  rent.  It  was  also  essential  to  the  enjoyment  of 
the  other  property.  It  did  not  appear  that  the  vendor  knew 
of  the  defect.  Held,  this  defect  avoided  the  sale,  and  was 
not  a  mistake  to  be  compensated  for,  although,  after  the  day 
day  named  for  completing  the  purchase,  and  before  action 
brought  by  the  vendee,  the  vendor  procured  a  lease  of  the 
yard  for  the  term  to  the  vendee,  and  offered  it  to  him.^ 

22,  The  particulars  of  sale  of  certain  leasehold  premises 
in  Covent  Garden  stated,  that  under  the  original  lease  "  no 
offensive  trade  was  to  be  carried  on,  and  that  the  premises 
could  not  be  let  to  a  coffee-house  keeper  or  working  hatter." 

1  Drewe  v.  Corp,  9  Ves.  368.  But  '"^  Dobell  v.  Hutchinsoiij  3  Ad.  &  Ell. 
see  Fordyce  v.  Ford,  4  Bro.  494.  355. 

-  Wright  V.  Howard,  11  Sim.  &  St. 
190. 


CH.  XIII.]  TITLE   TO   THE   PROPERTY    SOLD,   ETC.  245 

The  lease,  in  fact,  prohibited  the  business  of  brewer,  baker, 
sugar-baker,  vintner,  victualler,  butcher,  tripe-seller,  poulterer, 
fishmonger,  cheese-seller,  fruiterer,  herb-seller,  coffee-house 
keeper,  working  hatter,  and  many  others,  and  the  sale  of 
coals,  potatoes,  or  any  provisions.  Held,  the  discrepancy 
entitled  a  purchaser  to  rescind  his  contract.' 

23.  A  lessee's  bill  for  specific  performance  was  dismissed ; 
his  interest,  described  as  fifty  years,  the  residue  of  a  term, 
free  from  incumbrances,  being  a  few  years  only  of  an  old 
term,  and  a  reversionary  term  from  another  lessor ;  and  old 
incumbrances  not  shown  to  be  discharged.^ 

24.  A  contractor  for  the  purchase  of  an  estate  in  fee- 
simple,  in  possession,  free  from  incumbrances,  died  intestate, 
before  completion  of  the  contract.  There  proved  to  be  an 
outstanding  lease,  for  life,  at  a  low  rent.  A  bill  was  filed  by 
the  heir-at-law  for  specific  performance,  with  an  abatement 
for  the  lease,  and  seeking  to  have  the  purchase-money  paid 
out  of  the  personal  assets  of  the  purchaser.  Held,  the  pur- 
chaser could  not  have  been  compelled  to  perform  the  con- 
tract, and  the  heir  could  not  enforce  it.^ 

25.  Where,  in  articles  of  agreement  under  a  penalty,  there 
are  mutual  covenants  to  do  certain  acts,  and  also  a  covenant 
which  goes  to  the  whole  consideration  on  each  side ;  to  an 
action  for  the  penalty,  the  defendant  may  plead  in  bar  a 
breach  by  the  plaintiff  of  the  covenant  which  goes  to  the 
whole  consideration.  Thus,  an  agreement  for  the  sale  of 
lands  provided,  with  penalty,  that  the  seller  should  take  in 
part  payment  certain  lands  of  the  buyer,  and  that  all  timber 
trees,  then  upon  any  of  the  estates,  should  be  valued  by 
appraisers,  and  paid  for  by  the  respective  purchasers  at  a 
given  time.  To  an  action  of  debt  by  the  seller  for  the 
penalty,  the  buyer  may  plead  that  the  plaintiff,  before  the 
time,  cut  down  trees,  and  thereby  rendered  himself  unable 
to  perform  the  agreement.* 

'  Flight  V.  Booth,  I  Bing.  N.  C-  370.        *  Duke   of  St.   Albans  v.  Shore,    1 
2  White  V.  Foljambc,  11  Ves.  337.         H.  Blackf.  270. 
^  Collier    v.     Jenkins,    You.     295  ; 
Tucker  v.  Woods,  12  Johns.  190. 

21* 


240  LAW   OF   VENDORS   AND   PURCHASERS.  [CH.  XIII. 

26.  While  the  vendee  may  object  to  completion  of  the 
sale,  on  the  ground  of  deficiency  in  the  property  sold ;  the 
question  sometimes  arises  whether  the  vendor  can  raise  a 
similar  objection,  where  the  property  claimed  either  falls 
short  of  or  exceeds  that  contracted  for.  Upon  this  subject 
it  has  been  held,  that  a  vendor^  representing  and  contracting 
to  sell  the  estate  as  his  own,  cannot  object  that  he  has  only 
a  partial  interest.  The  purchaser  is  entitled  to  as  much  as 
he  can  have,  and  an  abatement.^  So,  defect  of  title  to  a 
considerable  part  of  the  estate,  though  a  good  objection  by 
the  jmrchaser  to  a  specific  performance,  is  not  such  by  the 
vendor? 

27.  But  in  the  following  case  A.  was  beneficially  entitled, 
under  his  marriage  settlement,  to  an  estate  for  his  life,  and 
to  the  ultimate  reversion  in  fee  in  default  of  issue  male ; 
and  the  trustees  of  the  settlement  had  a  power  to  sell,  at  his 
request  and  by  his  direction.  There  being  issue  of  the  mar- 
riage, A.,  acting  as  absolute  owner,  contracted  to  sell  the 
estate  to  B.,  but  the  trustees  afterwards  refused  to  concur  in 
the  sale.  Held,  on  a  bill,  the  purchaser  was  not  entitled  to 
have  the  contract  performed  to  the  extent  of  the  vendor's 
interest,  by  a  conveyance  of  his  life-estate  and  his  ultimate 
reversion.^ 

28.  It  has  been  held,  that  the  vendor,  as  well  as  the 
vendee,  may  have  the  benefit  of  the  rule  of  compensation  in 
equity,  where  the  property  conveyed  exceeds,  instead  of 
falling  short  of,  that  contracted  for.  Thus,  in  King  v. 
Hamilton,*  the  Court,  in  giving  their  opinion,  state  the 
case  substantially  as  follows.  Bill  for  specific  performance. 
The  bill  states,  that  there  is  a  surplus  of  several  hundred 
acres,  and  by  actual  measurement  it  is  found  to  be  eight 
hundred  and  seventy-six  acres  (the  patent  having  been 
granted  for  one  thousand  five  hundred  and  thirty -thre  e  and 
one  third  acres)  beyond  the  quantity  mentioned  in  the  con- 
tract.    It  is  a  fact  of  general  notoriety,  that  the  surveys  and 

1  Mortlock  V.  Buller,  10  Ves.  292.  ^  Thomas  v.  Deering,  1  Kee.  729. 

2  Western  v.  Russell,  3  Ves.  &  Beam.        *  4  Pet.  311. 
187. 


CH.  XIII.]  TITLE   TO   THE  PROPERTY   SOLD,   ETC.  247 

patents  for  lands,  within  the  Virginia  military  district,  con- 
tain a  greater  quantity  of  land  than  is  specified  in  the  grants. 
Parties,  when  purchasing  land  in  that  district,  and  referring 
to  the  patent  for  a  description,  of  course  expect  that  the 
quantity  would  exceed  the  specified  number  of  acres.  But 
so  large  an  excess  can  hardly  be  presumed  to  have  been 
within  the  expectation  of  either  party.  And,  admitting  that 
a  strict  legal  interpretation  would  entitle  the  purchaser  to 
the  surplus,  whatever  it  might  be,  it  by  no  means  follows, 
that  a  Court  of  Chancery  will  in  all  cases  enforce  specific 
performance  of  such  a  contract.  The  powers  of  a  Court  of 
Chancery  to  enforce  specific  execution  are  very  valuable  and 
important ;  for,  in  many  cases,  where  the  remedy  at  law  for 
damages  is  not  lost,  complete  justice  cannot  be  done  without 
a  specific  execution.  And  it  has  been  almost  as  much  a 
matter  of  course  for  a  Court  of  Equity  to  decree  specific 
execution  of  an  unobjectionable  contract  for  the  purchase  of 
lands,  as  it  is  to  give  damages  at  law  where  an  action  lies. 
But  this  power  is  to  be  exercised  under  the  sound  discretion 
of  the  Court,  with  an  eye  to  the  substantial  justice  of  the 
case.  If  this  large  surplus  should  be  taken  as  included  in 
the  original  purchase,  it  might  well  be  considered  a  case 
of  gross  inadequacy  of  price.  The  Court  decreed  a  convey- 
ance of  the  surplus,  the  vendee  to  pay  for  the  same  at  the 
average  rate  per  acre,  with  interest,  which  the  consideration- 
money  mentioned  in  the  contract  bore  to  the  quantity  of 
land  named.' 

29.  But  where  the  plaintiff  brought  a  bill  in  equity,  sup- 
posing that  more  lands  passed  by  his  deed  than  was  intended; 
the  defendant  being  a  purchaser  upon  valuable  consideration, 
held,  the  Court  would  give  no  relief.^ 

?  See  Cathcart  v.  Robinson,  5  Pet.        ^  Clifford  v.  Laughton,  Toth.  83. 
S.  C.  264. 


248  LAW   OF   VENDORS   AND   PURCHASERS.  [CH.  XIV. 


CHAPTER   XIV. 

REFERENCE   OF   TITLE. 
1 .  Questions  of  title,  when,  and  liow  referred.     Forms  of  proceeding. 

1.  In  suits  relating  to  the  sale  and  purchase  of  lands,  more 
especially  where  a  bill  is  brought  for  specific  performance, 
and  in  case  of  any  doubt  or  difficulty.  Equity  adopts  the  prac- 
tice of  a  reference  of  the  title,  for  the  purpose  of  determining 
upon  its  sufficiency,  and  making  a  return  or  report  to  the 
Court.i  Thus  after  an  answer,  submitting  to  perform  the  con- 
tract, if  a  good  title  can  be  made,  a  reference  wiU  be  directed 
by  decree,  or  by  order  on  motion,  whether  a  good  title  can  be 
made  ;  and  whether  it  appears  upon  the  abstract.^  So,  on  a 
bill  filed  by  a  vendor  for  specific  performance,  the  purchaser 
insisted  that  the  contract  had  been  abandoned ;  but  failing  in 
this  defence,  he  was  ordered  to  pay  the  costs  up  to  the  hear- 
ing, and  the  usual  reference  was  made  as  to  title.^  But,  if 
the  bill  and  answer  clearly  show  that  no  title  can  be  made ; 
reference  will  not  be  ordered.*  So,  on  the  other  hand,  spe- 
cific performance  was  decreed  against  a  purchaser,  without 
reference  as  to  the  title ;  upon  possession,  and  no  objection 
made  to  the  abstract.^  So,  upon  possession ;  a  correspon- 
dence ;  and  no  objection  to  the  title  till  two  years  after  the 
abstract  was  delivered.^ 

2.  When  an  inquiry  as  to  title  is  directed,  it  is  not  neces- 
sary to  carry  in  a  state  of  facts  ^  but  the  master  proceeds  upon 

1  M'Comb  V.  Wright,  4  Johns.  Ch.        ^  Taylor  v.  Brown,  2  Beav.  180. 
659.  *  Frost  v.  Brunson,  6  Yerji.  36. 

-  Wright  V.  Bond,  1 1  Ves.  39  ;  2  Dan.        ^  Fleetwood  v.  Green,  1.5  Ves.  594. 
Ch.  Pr.  1462  ;  Winterboitom  z;.  Ingham,         ^Margravine,  &c.  v.  Noel,  1  Madd. 

9  Sim.  654.  310. 


CH.  XIV.]  REFERENCE    OF   TITLE.  249 

the  abstract^  unless  the  purchaser  insists  upon  production  of 
the  title-deeds.^ 

3.  As  has  been  suggested,  reference  of  title  may  be  made 
on  motion.  An  order  thus  made  ought  to  contain  directions 
for  the  production  of  deeds,  &c.,  and  for  the  examination  of  the 
parties  on  oath.^  And  the  master,  (under  Lord  Lyndhurst's 
51st  order,)  has  the  same  power  to  examine  witnesses,  as  he 
would  have  had  if  the  reference  had  been  made  by  decree.* 
When  reference  is  thus  made,  further  directions  may  be 
obtained  by  motion.^ 

4.  In  suits  for  specific  performance,  every  thing  connected 
with  the  title  may  be  the  subject  of  the  usual  reference,  upon 
motion  as  to  the  title,  and  may  be  added,  by  way  of  inquiry, 
to  that  reference  ;  but  the  Court  will  not  allow  inquiry  as  to 
other  matters,  nor  decide  upon  any  matter  of  relief  not  ad- 
mitted by  the  answer.^  The  reference  may  inquire,  whether 
it  appeared  by  the  abstract  in  the  pleadings  mentioned,  that 
a  good  title  could  be  made.''  Upon  motion  for  a  reference 
of  title,  where  performance  is  resisted  on  other  grounds  than 
the  title,  the  Court  will  determine  by  the  answer  whether 
those  grounds  are  substantial  or  frivolous.^  if  substantial, 
the  motion  will  be  denied.^  If  not  substantial,  the  Court 
wiU  order  a  reference ;  as  where  the  ground  was,  that  the 
time  of  possession  had  been  made  of  the  essence  of  the  con- 
tract, which,  on  examination,  appeared  not  to  be  the  case.^^ 
So,  upon  a  bill  filed  by  the  vendor  for  specific  performance, 
it  appeared  that  the  defendant,  in  the  course  of  correspon- 
dence between  the  solicitors,  and  upon  a  case  stated  on  his 
part  for  the  opinion  of  counsel,  expressed  himself  willing  to 
accept  the  title,  if  a  particular  objection  were  removed.    That 


1  2  Dan.  Ch.  Pr.  1462.  "^  Jennings  v.  Hopton,  1  Madd.  211. 

2  2  Dan.  Ch.  Pr.  1463  ;  Poole  v.  Sher-  »  Withy  v.  Cottle,  Turn.  &  Riis.  78 ; 
gold,  1  Cox,  160.  Boyes  v.  Liddell,  1  You.  &  Col.  133. 

3  Winterhottom   v.  Ingham,  9   Sim.  ^  Blyth  v.  Elmher.st,  1  Ves.  &  B.  1 ; 
654.  Morgan  v.  Shaw.  2  Mer.  138  ;  Gonpertz. 

*  Woodroffe  v.  Titterton,  8  Sim.  238.  12  Ves.  17  ;  Paton  v.  Rogers,  1  Ves.  & 

5  Whitcomb  v.  Foley,  6  Madd.  3.  B.  351. 

»  Bennett  v.  Rees,  1  Keen,  405 ;  Moss  1°  Boehm  v.  Wood,  1  Jac.  &  W.  419, 
V.  Matthews,  3  Ves.  279. 


250  LAW   OF   VENDORS    AND   PURCHASERS,  [CH.  XIV. 

objection  not  being  removed,  tlie  bill  was  filed.  ILdd,  the 
reference  to  the  master  must  be  general,  and  not  confined  to 
this  objection.^ 

5.  Somewhat  contrary  to  the  above  practice,  where  a  motion 
was  made,  after  bill  filed,  and  before  answer,  for  a  reference 
as  to  title ;  the  counsel  for  the  defendant  saying,  there  were 
other  matters  in  question  besides  the  title ;  the  motion  was 
refused.^  So,  where  there  was  a  further  subject  of  dispute, 
beyond  the  title,  under  a  claim  of  compensation.,  reference 
was  refused  with  costs.'^  So  there  will  be  no  reference  of 
title,  upon  the  question  whether  the  estate  was  tithe-free^ 
having  been  sold  as  such.^  So,  where  the  purchaser,  besides 
objecting  to  the  title,  claimed  compensation  for  defect  of 
quantity ;  even  though  he  submitted  to  complete  his  agree- 
ment.^ 

6.  If  exceptions  to  the  report  of  a  good  title  are  overruled, 
other  objections  cannot  be  made ;  otherwise,  if  exceptions 
are  allowed,  and  a  new  abstract  delivered.^ 

7.  Where  the  answer  to  a  bill  for  specific  performance 
raises  any  other  objection  than  defects  in  the  title,  on  a  mo- 
tion for  reference,  after  answer,  it  seems,  the  Court  will  not 
inquire  whether  the  objections  be  frivolous,  but  reserve  the 
matter  to  the  hearing.'^ 

8.  A  bill  prayed  specific  performance  "  if  a  good  title  could 
be  made."  At  the  hearing  it  was  declared,  that  the  agree- 
ment ought  to  be  specifically  performed,  and  referred  to 
the  master  to  inquire,  whether  a  good  title  could  be  made. 
The  master  reported  in  the  negative.  The  plaintiff,  on  fur- 
ther directions,  waived  all  objections  to  the  title,  and  pro- 
posed to  take  the  property  ;  but  the  vendor  objected.  Held, 
the  plaintiff  was  entitled  to  a  decree ;  but,  being  aware,  at 
the  first  hearing,  of  the  objections  to  the  title,  he  ought  to 
pay  the  costs  of  the  investigation  in  the  master's  office.^ 

1  Lesturgeom  v.  Martin,  3  My.  &  Kee.        ^  Lowe  v.  Manners,  1  Mer.  19. 
255.  ^  Brooke  v. ,  4  Madd.  212. 

2  Matthews  v.  Dana,  .3  Madd.  470.  ^  Withy  v.  Cottle,  1  Sim.  &  Stu.  174. 
3 V.  Skelton,  1  Ves.  &  Bea.  517.         **  Bennett  v.  Fowler,  2  Beav.  302. 

*  Walliuger  v.  Hilbert,  1  Mer.  104. 


CH.  XIV.]  REFERENCE   OF   TITLE.  251 

9.  Injunction  to  restrain  a  purchaser  from  proceeding  at 
law,  to  recover  part  of  the  purchase-money  paid  by  him  in 
advance,  for  want  of  title,  and  outstanding  incumbrances. 
Held,  the  Court  would  not  make  absolute  the  common  order 
nisi  to  dissolve  the  injunction,  without  the  master's  report 
upon  the  title,  although  the  objections  were  fully  stated  in 
the  defendant's  answer.^ 

10.  The  Court  will  not,  on  motion,  after  an  order  for  a 
reference,  the  master  having  found  that  a  good  title  can  be 
made,  direct  him  to  inquire  when  such  title  could  first  be  made. 
Such  direction  should  be  applied  for  at  the  hearing  on  the 
merits.^  But,  in  case  of  a  decree  for  reference  upon  the  title, 
the  cause  coming  on  for  further  directions,  after  a  report 
approving  the  title,  the  defendant  was  held  entitled  to  an 
inquiry,  at  what  time  a  title  could  have  been  made.^  Bill 
for  specific  performance,  filed  by  the  vendor.  On  a  reference 
of  title,  the  master  having  reported  that  a  good  title  could  be 
ilifede,  an  order  was  passed,  referring  it  back  to  him,  to  see 
whether  such  title  could  have  been  made  prior  to  the  filing 
of  the  bill.*  But  the  inquiry,  at  what  time  a  title  could  be 
made,  is  a  proper  subject  of  further  directions  after  the  re- 
port upon  the  title ;  and  not  to  be  combined  with  the  refer- 
ence of  title.^ 

11.  A*reference  having  been  made  as  to  title,  on  one  mo- 
tion, the  party  cannot  afterwards,  by  another  motion,  have  a 
reference  as  to  the  delivery  of  the  abstract.*^ 

12.  Bill  for  specific  performance,  against  a  purchaser.  The 
defendant,  admitting  that  he  had  been  for  several  months 
in  possession,  and  had  exercised  acts  of  ownership,  on  the 
faith  that  a  good  title  to  three  hundred  and  forty-nine  acres 
would  be  shown,  insisted,  that,  in  the  contract,  acres  meant 
statute  acres,  and  that  he  was  not  bound  unless  three  hundred 


1  Church  V.  Lep:eyt,  1  Pr.  301.  ^  Gibson  v.  Clarke,  2  Ves.  &  Bea. 

2  Lubin  V.  Lightbody,  8  Price,  606.         103. 

3  Daly  V.  Osborne,  1  Mer.  382.  '^  Hyde  v.  Wroughton,  3  Madd.  279. 
*  Birch  V.  Haynes,  2  Mer.  444  ;  3  Madd. 

495. 


252  LAW   OF   VENDORS    AND    PURCHASERS.  [ciI.  XIV. 

and  forty-nine  statute  acres  were  conveyed  to  him.  Held, 
a  reference  of  title  would  not  be  directed  on  motion.  It 
seems,  the  clause,  "  be  the  same  more  or  less,"  would  not 
cover  so  large  a  deficiency.^ 

13.  Reference  of  title  before  answer ;  the  plaintiff,  the 
vendor,  undertaking  to  do  all  such  acts,  for  the  jjurpose  of 
executing  what  the  Court  thinks  right,  as  if  the  answer  were 
in,  and  the  cause  brought  to  hearing.  Direction,  if  the  report 
shall  be  against  the  title,  for  compensation ;  but  refused  as 
to  indemnity.^ 

14.  On  a  report  against  the  vendor's  title,  his  bill  for  spe- 
cific performance  was  dismissed,  with  costs,  on  motion.^ 
But  an  order  to  dismiss  a  bill  for  want  of  prosecution  is  not 
of  course,  pending  a  reference  on  motion ;  the  title  alone 
being  in  question.*  But  where,  in  a  suit  by  a  vendor  for 
specific  performance,  the  master  reported  in  favor  of  the  title, 
but  the  Court,  on  exception,  deemed  it  doubtful ;  an  order  was 
made,  dismissing  the  bill,  without  costs,  but  neither  allowii% 
nor  disallowing  the  exception.^ 

15.  Where  the  report  is  in  favor  of  the  title,  the  Court,  on 
allowing  exceptions  to  it,  will  give  the  vendor  a  reasonable 
time  to  remove  the  objection,  although  the  exceptions  and 
further  directions  were  set  down  to  come  on  together.^ 

16.  On  a  motion  by  a  vendor  against  a  vendee  in  posses- 
sion, for  a  reference  to  set  an  occupation  rent,  the  title  not 
being  completed,  an  order  was  accordingly  made,  and  that 
interest  at  <£5  per  cent.,  upon  the  deposit,  should,  under  the 
circumstances,  be  deducted  out  of  such  rent.'^ 

17.  Upon  a  question  of  title,  as  to  specific  performance, 
further  evidence  may  be  produced  on  both  sides  before  the 
master.^ 

18.  One  general  exception  was  taken  to  the  master's  re- 

1  Portman  r.  Mill,  2  Russ.  570.  ^  Wilcox  v.  Bellares,  Turn.  &  Russ. 

-  Balmanno  v.  Lumley,  1  Ves.  &  Bea.  491 . 

224.  6  Portman  v.  Mill,  1  Russ.  &  Myl.  696. 

3  Waltersw.  Pyman,  19  Ves.351  ;Ben-  '  Smith  v.  Jackson,  1  Mad.  618. 

nett  V.  Carey,  SBro.  390.  **  Vancouver  v.  Bliss,  11  Ves.  458. 

*  Biscoe  V.  Brett,  2  Ves.  &  Beam.  377. 


CH.  XIV.]  REFERENCE    OF   TITLE.  253 

port  of  a  good  title,  which  did  not  point  out  the  objections 
to  the  title.  The  Court  disapproved  of  this  inconvenient 
mode  of  proceeding.^ 

19.  Where,  on  reference  as  to  title,  in  a  suit  against  a  pur- 
chaser for  specific  performance,  the  master  reports  in  favor  of 
the  title,  but  the  Court  holds  it  to  be  so  doubtful,  that  the 
purchaser  should  not  be  compelled  to  take  it ;  the  bill  may 
be  dismissed,  without  allowing  the  exceptions  taken  by  the 
defendant  to  the  report.^ 

20.  Leave  was  given,  under  the  circumstances,  to  except 
to  a  report,  although  the  party  had  not  carried  in  objections 
toit.=^ 

21.  A  purchase  before  the  master  is  not  complete,  before 
confirmation  of  the  report.  Therefore  a  loss  by  fire,  after 
the  report,  but  before  confirmation,  falls  upon  the  vendor ; 
although  the  sale  was  delayed  by  the  purchaser's  having 
opened  the  biddings.* 

22.  After  a  report,  which  was  confirmed,  in  favor  of  a  title, 
by  one  master,  another  master,  in  another  proceeding,  made 
a  report,  by  which  the  title  was  affected.  On  motion,  the 
title  was  referred  back  to  the  former  master.^ 

23.  If,  upon  a  question  of  title,  the  master  is  satisfied  with 
the  evidence,  but,  upon  the  hearing  of  an  exception  to  the 
report,  the  Court  thinks  the  evidence  not  sufficient,  the  Court, 
upon  the  application  of  the  vendor,  even  though  for  some 
time  delayed,  will  refer  it  back  to  the  master  to  review  his 
report,  in  order  to  give  the  vendor  an  opportunity  of  produc- 
ing further  evidence.^ 

24.  The  plaintiff",  holding  a  contract  for  the  purchase  of 
land,  sold  the  land  to  the  defendant ;  and,  upon  the  defend- 
ant's failure  to  fulfil  his  contract,  files  a  bill  for  specific 
performance.     The  case  was  referred  to  a  master,  to  report 


1  Flomer  v.  Hartopp,  6  Beav.  476.  ^  Jeudwine  v.  Alcock,  1  Madd.  597. 

2  Robinson  v.  Milner,  1  Hare,  578,  n.  ^  Andrew   v.   Andrew,  3   Sim.  390 ; 

3  Wood  V.  Lambirth,  9  Sim.  195.  Egerton  v.  Jones,  3  Sim.  392. 
*  Ex  parte  Minor,  11  Ves.  559. 

22 


254  LAW  OF  VENDORS  AND  PURCHASERS.      [CH.  XTV. 

whether  the  plaintiff  could  make  a  good  title.  The  report 
was  favorable,  and  tlie  defendant  excepted.  Held,  the  re- 
port followed  the  reference,  though  it  should  properly  show 
how  title  could  be  made ;  and  specific  performance  was  de- 
creed.^ 

1  Scott  V.  Thorp,  4  Edw.  Ch.  1. 


CH.  XV.]  TITLE   DEEDS.  256 


CHAPTER    XV. 


TITLE    DEEDS. 


1.  In  the  English  law,  the  deeds,  under  which  a  title  to 
real  property  is  derived  or  claimed,  constitute  an  important 
subject  of  inquiry,  and  give  rise  to  numerous  and  nice  ques- 
tions. And  although,  in  the  United  States,  where  the  sys- 
tem of  registration  universally  prevails,  the  rules  upon  this 
subject  cannot  be  considered  as  generally  in  force ;  still,  a 
comprehensive  view  of  the  law  of  vendors  and  purchasers 
requires  that  they  should  be  summarily  noticed. 

2.  In  England,  it  is  the  settled  rule  of  law,  that  a  purchaser 
of  real  property  is  not  bound  to  complete  his  purchase  with- 
out the  title  deeds,  unless  he  has  a  legal  covenant  to  produce 
them.i  And  by  analogy  to  this  rule  it  is  held,  that  a  vendee 
is  not  bound  to  accept  the  title,  unless  the  deeds  under  which 
it  is  deduced  are  regularly  recorded ;  there  being  no  other 
proof  of  their  execution.^  But,  where  a  party  binds  himself 
to  execute  a  deed  to  another,  he  is  bound  to  deliver  or  tender 
it  to  him  ;  the  acknowledgment  of  it  before  the  clerk  of  the 
county  court,  and  deposit  of  it  with  him  for  the  benefit  of  the 
grantee,  are  no  performance  of  his  obligation.^ 

3.  While  the  title  deeds  must  themselves  be  produced,  a 
good  title  also  requires  the  production  of  extraneous  evidence 
of  the  facts  stated  in  the  deeds  ;  even  though  the  purchaser 
makes  no  requisition  therefor.^  A  vendor  must  produce  all 
evidence  necessary  to  verify  the  title,  beyond  the  title  deeds  in 


1  Barclay  v.  Eaine,  1   Sim.  &  Stu.  ^  Mcradgeni;.Eisensmidt,  10  Humph. 

449.  567. 

-  Bartlett  v.  Blanton,  4  J.  J.  Marsh.  *  Sherwin    v.    Shakspeare,   23   Eng. 

428.  Law  &  Eq.  199. 


256  LAW    OF   VENDORS   AND    PURCHASERS.  [cil.  XV. 

his  own  custody,  unless  his  intention  to  the  contrary  be  pre- 
viously made  known  to  the  purchaser  in  clear  and  explicit 
terms.^  If  a  vendor  retains  the  title  deeds,  and  covenants  for 
further  assurance  only,  the  purchaser  may  compel  him  to 
covenant  for  production  of  the  deeds.^  But  a  purchaser  is  not 
entitled,  as  a  matter  of  course,  to  a  covenant  for  the  produc- 
tion of  all  documents  contained  in  the  abstract  of  title,  which 
are  not  delivered  to  him  ;  but  only  of  those  which  are  neces- 
sary to  make  out  a  good  sixty  years'  title.^ 

4.  Although  conditions  of  sale  provide,  that  no  earlier  or 
other  title  should  be  deduced,  or  any  deed  or  document  pro- 
duced, anterior  to  a  specified  document ;  the  vendee  is  not 
precluded  from  making  an  objection  to  the  title,  which  ap- 
pears on  the  face  of  the  abstract  delivered.^ 

5.  A  purchaser,  who  cannot  have  the  original  title  deeds, 
the  estate  being  sold  in  a  great  number  of  lots,  is  entitled  to 
attested  copies  at  the  expense  of  the  vendor,  notwithstanding 
the  inconvenience  and  expense.^  [a)  So,  where  title  deeds 
cannot  be  delivered,  assignees  must,  like  any  other  vendor. 


1  Sonthby  v.  Hutt,  2  Myl.  &  Cra.  207.         &  Dare  v.  Tucker,  6  Ves.  459  ;  Ward 

2  Fain  i'.  Aycrs,  2  Sim.  &  Stu.  533.       v.  Garraons,  17  Ves.  134 ;  Boughton  v. 

3  Cooper  2,'.  Emery,  1  Piiil.  388.  Jewell,  15  Ves.  176. 
*  Sellick  V.  Trevor,  11  Mees.  &  Wels. 

722. 


(a)  But,  on  the  other  hand,  a  purchaser  is  not  bound  to  put  up  with 
copies,  where  the  originals  can  be  had.  Thus,  the  vendor  of  copyhold,  en- 
franchised in  1799,  delivered  to  the  purchaser  two  abstracts  commencing  in 
1736,  one  of  title  to  the  land  and  the  other  of  the  title  to  the  manor.  The 
deed  of  1799,  which  was  forty  years  old,  recited,  that  the  then  lord  and  the 
then  owner  of  the  land  were  respectively  seised  in  fee ;  and  several  of  the 
deeds  relating  to  the  lord's  title  were  bargains  and  sales  enrolled,  and  there- 
fore, copies  of  thera,  as  well  as  of  the  surrenders  and  admittances,  which 
would  be  good  evidence,  might  be  procured  by  the  purchaser  at  any  time. 
The  vendor  was  unable  to  deliver  to  the  purchaser  the  deed  of  1799,  or  any 
of  the  prior  instruments,  but  was  willing  to  covenant  to  produce  that  deed. 
Held,  that  he  was  bound  to  give  the  purchaser  covenants  for  the  production, 
not  only  of  that  deed,  but  of  all  the  prior  instruments  mentioned  in  the  ab- 
stracts.    Cooper  V.  Emery,  10  Sim.  609. 


CH.  XV.]  TITLE   DEEDS.  257 

give  attested  copies  of  them  at  the  expense  of  the  estate  ;  but 
their  covenant  for  the  production  of  the  deeds  should  be  con- 
fined to  the  time  of  their  continuance  as  assignees.^ 

6.  Objection  to  a  title  for  want  of  a  deed,  which  had  been 
enrolled  at  a  public  office,  but  could  not  be  found.  A  copy  of 
it,  taken  in  1632,  attested  to  be  a  true  one  by  five  witnesses, 
was  produced  in  Court.  Lord  Hardwicke  was  of  opinion, 
that  this  would  have  been  sufficient,  even  without  an  attes- 
tation.'^ 

7.  If,  after  a  sale,  but  before  the  title  is  accepted,  the  title 
deeds  be  destroyed  by  fire,  the  Court  will  not  compel  specific 
performance,  unless  the  vendor  can  furnish  the  means  of 
showing  their  contents,  and  that  they  were  duly  executed 
and  delivered.^ 

8.  While  a  title  depending  on  deeds  must  generally  be 
verified  by  the  production  of  them  ;  still  a  good  title  may  be 
made,  although  the  origin  cannot  be  shown  by  any  deed  or 
will ;  if  there  has  been  such  a  long,  uninterrupted  possession 
and  enjoyment  of,  and  dealing  with,  the  property,  as  afford  a 
reasonable  presumption,  that  there  is  an  absolute  title  in  fee 
simple.*  And  it  has  been  held,  that  the  Court  will  compel 
a  purchaser  to  take  a  title,  depending  upon  parol  evidence 
of  adverse  possession  under  the  statute  of  limitations.-^  So 
where  the  plaintiff  produces  an  original  lease  of  a  long  term, 
and  proves  possession  for  seventy  years,  the  mesne  assign- 
ments shall  be  presumed.*^  So  the  existence  and  execution 
of  a  settlement  by  indentures  of  lease  and  release  were  pre- 
sumed from  circumstances  ;  principally  the  existence  of  the 
drafts ;  the  statement  in  an  abstract  of  the  title ;  and  the 
existence  of  the  lease  for  a  year  of  other  estates,  appearing  to 
have  been  included  in  the  same  plan  of  settlement.'^ 

9.  But,  on  the  other  hand,  where  a  leasehold  was  sold, 
subject  to  a  ground-rent,  which  was  said  to  be  apportioned 

1  Ex  parte  Stuart,  2  Eose,  21 5.  ^  Scott  v.  Nixon,  .3  Dru.  &  War.  388. 

2  Harvey  v.  Phillips,  2  Atk.  541.  ^  Earl  v.  Baxter,  2  Blackst.  1228. 

3  Bryant  v.  Busk,  4  Russ.  1.  "^  Ward  v.  Garmons,  17  Ves.  134. 
*  Cottrell  v.  Watkins,  1  Beav.  361. 

22  * 


258  LAW    OF   VENDORS   AND    PURCHASERS.  [r'll.  XV. 

• 
out  of  a  larger  rent,  but  the  apportionment  was  not  evidenced 

by  any  existing  deed,  but  only  by  the  acceptance  of  a  mesne 
landlord,  and  presumption  ;  held,  that  the  purchaser  was 
not  bound  to  accept  the  title.^  So  it  has  been  held,  that 
a  vendor's  showing  an  uninterrupted  possession  of  twenty 
years  in  himself,  and  those  under  whom  he  claims,  is  not 
sufficient.2 

10.  Conveyance,  in  1793,  from  persons  residing  in  Ber- 
muda, of  lands  then  in  their  possession,  and  to  which,  sub- 
ject to  an  outstanding  but  satisfied  mortgage  term,  they 
claimed  title  under  an  entail  createcT  in  1732,  through  a  de- 
scent recited  in  the  deeds.  A  subsequent  assignment  of  the 
mortgage  term  from  the  mortgagee  to  the  purchaser,  and 
uninterrupted  enjoyment  under  his  conveyance,  will  not 
enable  him  to  make  a  good  title  ;  if  unsupported  by  extrinsic 
evidence  of  the  pedigree  recited  in  the  deeds,  or  of  posses- 
sion, prior  to  1793,  conformable  to  that  pedigree.^ 

11.  Where  a  title  was  derived  from  one  who  entered  as 
heir,  under  the  impression  that  his  ancestor's  will  was  void, 
a  purchaser  was  not  compelled  to  complete  his  contract, 
without  production  of  the  will,  or  evidence  of  its  contents.* 
But  where  one  articles  to  buy  land,  and  the  title  is  under  a 
will,  not  proved  in  equity  against  the  heir ;  yet,  in  some  cases, 
equity  will  compel  the  purchaser  to  accept  the  title.^ 

12.  The  abstract  of  title  is  one  of  the  documents,  upon 
which  questions  have  often  arisen  between  vendor  and  pur- 
chaser. Where  the  title  and  abstract  are  to  be  made  at  the 
vendor's  expense,  the  purchaser  is  entitled  to  the  custody  of 
the  abstract,  until  either  the  purchase  is  finally  rescinded  by 
consent,  or  declared  impracticable  by  a  court  of  equity. 
When  the  contract  is  determined,  the  abstract  becomes  the 
property  of  the  vendor.  If  the  sale  proceeds,  it  is  the  prop- 
erty of  the  vendee.     A71  opinion  written  thereon,  as  it  was 


1  Barnwall  v.  Harris,  1  Taunt.  430.  *  Stevens  v.  Guppy,  2  Sim.   «&  Stu. 

2  Lewis  V.  Hcrndon,  3  Litt.  358.  439. 

3  Fort  V.  Clarice,  1  Russ.  601.  ^  Colton  v.  Wilson,  3  P.  Wms.  190. 


CH.  XV.]  TITLE   DEEDS.  259 

necessarily  written  on  the  seller's  paper  by  his  consent,  con- 
tinues the  property  of  the  purchaser.^ 

13.  On  reference  of  title  to  a  master,  he  proceeds  on  the 
abstract  only,  unless  the  purchaser  requires  the  deeds ;  and 
the  latter  cannot  except  to  the  report  on  this  ground.^ 

14.  Specific  performance  decreed  ;  the  abstract,  though 
delivered  very  late,  and  under  a  notice  that  the  vendee  would 
insist  on  his  deposit,  with  interest,  if  the  title  should  not  be 
made  out,  and  possession  delivered,  by  the  time  of  payment, 
having  been  received  and  kept  without  objection ;  and  the 
vendee,  upon  the  construction  and  the  circumstances,  not 
being  entitled  to  insist  on  the  time,  as  of  the  essence  of  the 
contract.^ 

15.  Conditions  of  sale  of  an  estate  sold  in  lots,  that  the 
vendor  should  deliver  an  abstract  of  the  title  to  the  pur- 
chasers, and  deduce  a  good  title ;  but,  as  to  a  part  of  the 
estate,  acquired  under  an  inclosure,  he  should  not  be  bound 
to  show  any  title  thereto,  prior  to  the  award ;  that  the  vendor 
should  deliver  up,  to  the  largest  purchaser  in  value,  all  the 
title  deeds  and  other  documents  in  his  custody,  but  not  be 
required  to  produce  any  original  deed  or  other  documents 
than  those  in  his  possession  and  set  forth  in  the  abstract. 
Held,  these  conditions  did  not  relieve  the  vendor  from  verify- 
ing the  title  shown  upon  the  abstract,  by  producing  the  title 
deeds  themselves,  or,  if  any  of  them  were  not  in  his  posses- 
sion, by  other  satisfactory  evidence.* 

16.  In  1745,  J.  executed  a  settlement  of  lands,  reserving 
a  power,  with  the  consent  of  A.,  to  revoke  the  uses.  The 
abstract  of  title  set  forth  a  will  of  J.,  dated  in  1761,  whereby 
he,  with  the  consent  of  A.,  revoked  the  uses  ;  and  it  referred 
to  a  copy  of  the  will.  P.,  the  son  and  heir  of  J.,  by  inden- 
ture of  1763,  reciting  the  will,  resettled  the  estates  ;  and 
possession  had  since  gone  accordingly.  Held,  the  non-pro- 
duction of  the  will  was  not  an  objection  to  the  title.     In  the 

1  Roberts  v.  Wyatt,  2  Taunt.  268.  ^  geim  v.  Slade,  7  Ves.  265. 

2  Poole  V.  Shergold,  1  Cox,  160.  *  Southby  v.  Hutt,  2  My.  &  Cr.  207. 


260  LAW    OF   VENDORS    AND    PURCirASERS.  [CII.  XV. 

same  case,  the  abstract  stated  a  deed  of  March,  1814,  making 
a  tenant  to  the  pracipe,  which  recited  articles  of  February, 
1814,  between  the  father,  tenant  for  life,  and  his  son,  tenant 
in  tail,  empowering  them  to  revoke  the  uses  thereby  declared  ; 
and  the  recovery  was  declared  to  enure  to  the  uses  in  the 
articles.  In  1815,  the  father  and  son  revoked  the  uses,  and 
resettled  the  estates ;  and  possession  had  gone  accordingly. 
The  abstract  stated,  that  the  articles  had  been  lost ;  and  it 
appeared  that  search  had  been  made  for  them.  Held,  that 
their  non-production  was  not  an  objection  to  the  title.  Held, 
in  the  same  case,  if  counsel  for  the  purchaser  waive  the  pro- 
duction of  a  particular  document,  stated  in  the  abstract  to 
be  lost,  and  the  purchaser  adopt  that  opinion,  and  deal  with 
the  seller  upon  that  view,  he  will  not  be  permitted  to  repu- 
diate the  opinion  of  his  counsel.^ 

17.  Upon  the  death  of  one  of  two  partners,  intestate,  his 
personal  representatives  agreed  to  sell  his  moiety  of  the  real 
property  to  the  other,  and  furnish  him  at  their  own  expense 
with  an  abstract  of  their  title.  Held,  they  were  bound  to 
furnish  the  usual  abstract  of  title,  and  not  merely  the  letters 
of  administration.^ 

18.  Purchase  of  a  mansion-house  and  park  under  condi- 
tions of  sale,  which  stated  that  the  whole  property  was  free- 
hold, except  eight  acres  which  were  copyhold,  but  undistin- 
guished, except  as  not  including  any  of  the  buildings.  The 
abstract  of  title  having  been  delivered,  and  discussions  arisen 
thereon,  which  raised  difficulties  in  the  way  of  completing 
the  purchase ;  a  supplemental  agreement  was  entered  into, 
detailing  among  the  requisitions,  "  declaration  of  identity  of 
lands  mentioned  in  deeds  to  those  now  sold."  Held,  on  a 
bill  filed  by  the  vendor  for  specific  performance,  that  the 
supplemental  agreement  was  a  substitution  for  the.  original 
contract,  and  that  the  vendee  was  not  entitled  to  demand, 
that  the  vendor  should   distinguish  the  freehold  from  the 

1  Alexander  v.  Crosby,  1  Jones  &  La-  ^  Moms  v.  Kearsley,  2  You.  &  Coll. 
touche,  666.  139. 


CH.  XV.]  TITLE    DEEDS.  261 

copyhold,  so  as  to  show  that  the  latter  did  not  include  any 
of  the  buildings.^ 

19.  A  condition  of  sale  of  copyhold  estates  stipulated,  that 
the  vendors  should  not  be  required  to  produce  any  deeds, 
instruments,  or  documents  of  title,  not  in  their  possession. 
Held,  in  an  action  to  recover  back  the  deposit,  that  the  ven- 
dors were  not  bound  to  procure  a  covenant,  for  the  produc- 
tion of  two  deeds  not  in  possession  of  the  vendor,  but  which 
were  set  out  in  the  abstract  of  title  delivered  to  the  purchaser, 
and  to  which  the  vendors  had  procured  access,  for  the  pur- 
pose of  verifying  the  abstract.^ 

1  Dawsou  V.  Brinckman,  3  Eng.  Law        ^  Gabriel  v.  Smith,  6  Eng.  Law  &  Eq. 
&Eq.  239.  172. 


262  LAW   OF   VENDORS    AND    PURCHASERS.  [CII.  XVI. 


CHAPTER  XVI. 


TITLE   TO    LEASEHOLDS. 


I.  Atjrccraent  for  a  lease. 

5.  Whether  an  agreement  for  a  lease 
or  purchase  in  fee. 

10.  What  is  necessary  to  constitute  a 
sale  of  leasehold  ;  otter  and  acceptance. 

II.  Unccitaitilij  in  the  agreement. 

12.  The  vendor  must  make  a  good 
title. 

22.  Otherwise  in  case  of  express 
agreement  to  the  contrary. 


24.    Waiver  of  title. 

27.  Covenants,  in  case  of  leasehold 
sales. 

31.  Part-fliilure  of  title;  compensa- 
tion,  I'cscinding,  &c. 

4tj.  Eftcct  of  notice  upon  the  title. 

47.  Parol  evidence. 

50.  Statute  of  Frauds. 


1.  The  principles  stated  in  the  foregoing  chapters,  as  to 
the  title  of  a  vendor,  apply  more -particularly  to  sales  in  fee- 
simple  or  of  the  entire  estate.  There  is  another  interest  in 
real  property,  which  often  becomes  the  subject  of  sale  and 
purchase,  and  which  may  most  properly  be  considered  in 
this  connection,  to  wit,  leasehold  estates  or  terms  for  years. 
A  lease,  being  an  executed  conveyance,  and  not  a  mere  execu- 
tory contract,  does  not  fall  within  the  plan  of  the  present 
work,  except  so  far  as  connected  w^ith  the  subsequent  sale 
and  purchase  of  the  lessee's  interest.  But  an  agreement  to 
lease,  being  in  its  nature  executory,  requires  to  be  briefly 
noticed. 

2.  Whether  an  instrument  is  a  lease,  or  only  an  agree- 
ment for  one,  depends  upon  the  paramount  intent  of  the 
parties,  as  collected  from  the  whole  tenor  and  effect  of  the 
instrument.^  (a)     Words  oi present  demise,  as  doth  let,  agrees 

'  Goodtitle  v.  Way,  1  T.  R.  73.'5  ;  Perring  v.  Brooke,  1  M.  &  R.  10:  John 
Hallett   V.   Wylie.   3   Johns.    44,   383 ;     v.  Jenkins,  1  Cr.  &  M.  233. 

(a)  By  St.  7  and  8  Vict.  c.  76,  §  4,  any  written  agreement  to  let  land 


CH.  XVI.]  TITLE   TO   LEASEHOLDS.  263 

to  let,  agrees  to  pay  for,  &c.,  generally  make  an  actual  lease  ; 
unless  a  contrary  intent  is  to  be  gathered  from  the  whole 
instrument.  As  where,  notwithstanding  such  words,  a  future 
lease  is  provided  for,  upon  the  making  of  certain  improve- 
ments ;  or  additional  land  is  to  be  purchased,  and  included 
in  the  lease.^  But  an  agreement  to  give  a  more  formal  lease 
may  amount  only  to  a  covenant  for  further  assurance.^ 

3.  Uncertainty  in  the  terms  of  holding  generally  consti- 
tutes the  instrument  a  mere  agreement  to  lease.^  So  the 
fact  that  a  forfeiture  w'iR  be  incurred,  if  otherwise  construed.* 

4.  An  agreement  to  give  a  lease  may  be  enforced,  either 
by  an  action  for  damages,  or  a  bill  in  equity  for  specific 
performance.^ 

5.  The  question  sometimes  arises,  upon  the  peculiar  terms 
of  a  contract,  whether  it  provides  for  a  lease  or  a  purchase  of 
the  fee.  Thus,  A.  agreed  with  B.  by  deed,  that  he.  A., 
would,  on  payment  of  £900,  as  thereinafter  mentioned, 
grant,  sell,  and  convey  to  B.  certain  messuages,  lands,  &c. ; 
and  B.  covenanted  to  pay  said  sum  on  or  before  the  1st  of 
January  then  next,  or  whenever  a  good  title  should  be  ten- 
dered to  him;  but,  if  B.  should,  on  or  before  the  1st  of 
January,  so  desire  that  sum  might  remain  a  charge  on  the 
premises,  it  provided,  upon  completion  by  A.  of  the  convey- 
ances, B.  should  execute  proper  conveyances  for  securing 
.£900  on  the  premises  with  interest.  Covenant  by  B.,  to  pay 
the  interest,  so  long  as  the  principal  should  remain  unpaid. 
Proviso,  that,  if  the  interest  should  be  in  arrear  thirty  days, 
B.  should  be  considered  as  a  tenant  to  A.  from  the  date 
thereof,  at  a  certain  yearly  rent,  payable  semi-annually ;  and 

1  Baxter  v.  Brown,  2  W.  Bl.  973  ;  ^  Jackson  v.  Keisselbrach,  10  Johns. 

Jackson  v.  Moncrief,  5  Wend.  26  ;  Jack-  436. 

son  V.  Delacroix,  2,  433  :  Dunk  v.  Hun-  ^  Alderman  v.  Neate,  4  M.  &  W.  704. 

ter,  5  B.  &  A.  322 ;  Doe  v.  Ashburner,  5  *  Tenny  v.  Childs,  2  M.  &  S.  225. 

T.  R.  163.  5  Price  v.  Williams,  1  Mees.  &  W.  6. 

shall  be  valid,  and  any  one  in  possession  under  such  agreement  may,  from 
payment  of  rent  or  other  circumstances,  be  construed  as  a  tenant  from  year 
to  year. 


264  LAW   OF   VENDORS    AND    PURCnASERS.  [cit.  XVI. 

it  should  be  lawful  for  A.,  his  heirs  and  assigns,  to  enter  and 
distrain,  and  to  sell  and  dispose  of  the  distress,  or  otherwise 
to  deal  with  the  same,  as  in  distresses  for  rent  reserved  by 
lease,  to  the  end  that  A.  might  be  fully  paid  and  satisfied 
the  interest  and  costs.  B.  gave  due  notice,  that  he  would 
require  the  purchase-money  to  remain  a  charge  for  five 
years  ;  was  let  into  possession  and  received  the  rents,  and  in 
July,  1828,  became  bankrupt ;  and,  half  a  year's  interest 
being  in  arrear  for  more  than  thirty  days,  A.  distrained  on 
the  tenants  then  in  possession.  The  assignees  paid  the 
amount  of  the  distress.  On  the  16th  of  October,  1828,  after 
B.  had  obtained  his  certificate,  another  half-year's  interest 
became  due,  and  this  action  of  covenant  was  brought 
against  him  to  recover  it.  He  pleaded  the  bankruptcy,  gen- 
erally. Held,  the  agreement  was  substantially  an  agreement 
for  a  purchase,  and  did  not  become  a  lease,  or  agreement  for 
a  lease,  by  non-payment  of  the  interest,  and  the  above  pro- 
viso, that  the  plaintiff"  was  entitled  to  have  the  estate  resold, 
and  the  produce  and  interest  applied  in  payment  of  the 
purchase-money,  and  to  prove  against  the  estate  for  the 
residue  ;  and,  consequently,  that  the  claim  for  interest  was  a 
debt  provable  under  the  commission,  and  therefore  barred 
by  the  certificate.^ 

6.  Declaration,  that  the  plaintiff  bargained  to  buy  of  the 
defendant,  and  the  defendant  agreed  to  sell  to  him,  a  dwell- 
ing house  and  fixtures,  for  the  residue  of  a  term  then  and 
still  unexpired,  to  commence  from  the  1st  of  January,  1840, 
for  £60 ;  and  the  defendant  promised  to  execute  a  proper 
conveyance,  make  out  an  abstract  of  title,  and  deliver  pos- 
session from  the  1st  of  January,  1840,  &c.  At  the  trial, 
the  following  paper,  signed  by  the  defendant,  was  read  in 
evidence :  "  I  agree  to  sell  the  house  and  fixtures.  No.  163, 
Piccadilly,  to  commence  from  the  1st  of  January  next,  for 
X60."  Held,  this  document  imported  the  sale  of  a  fee- 
simple,  and  did  not  sustain  the  contract  alleged.''^ 

1  Hope  V.  Ellis,  1  Barn.  &  Ad.  498.  ^  Hughes  v.  Parker,  8  Mees.  &  W.  244. 


CH.  XVI.]  TITLE   TO   LEASEHOLDS.  265 

7.  Sometimes  a  lease  itself  contains  a  covenant  to  convey 
in  fee-simple.  In  case  of  such  a  covenant,  allow^ing  a  lessee 
to  purchase  the  fee  at  a  specified  sum,  the  law  intends  that 
the  rent  was  fixed  at  the  amount  reserved,  as  an  inducement 
to  such  purchase. 

8.  The  words,  "  shall  have  liberty  to  purchase,"  contained 
in  a  covenant,  require  a  clear  title,  free  from  a  claim  of 
dower,  and  all  other  incumbrances ;  that  is,  the  whole  title} 

9.  A  lessee  for  years,  with  an  option  at  certain  periods  to 
purchase,  and  making  that  option,  was  considered  owner 
ab  initio,  for  the  benefit  of  the  heir ;  the  price  to  be  paid  by 
the  executor.2 

10.  The  same  mutual  understanding  or  assent  has  been 
held  necessary  to  a  binding  contract  for  the  sale  and  pur- 
chase of  a  leasehold  interest,  as  in  contracts  relating  to  an 
estate  in  fee.  (See  Ch.  2.)  Thus,  the  defendant  offered  to 
purchase  of  the  plaintiff  the  lease  of  a  house,  requiring  pos- 
session on  the  25th  of  July,  and  a  definitive  answer  within  six 
weeks.  The  plaintiff  accepted  the  proposal,  offering  posses- 
sion on  the  Xst  of  August.  The  defendant  afterwards,  and 
before  the  six  weeks  had  expired,  retracted  his  offer.  Held, 
the  plaintiff's  acceptance  of  the  defendant's  offer  not  being 
in  the  terms  proposed,  and  no  proper  acceptance  of  it  having 
been  given  before  the  defendant  withdrew,  the  agreement 
was  vacated. 3 

11.  It  has  been  held,  in  reference  to  the  sale  of  a  leasehold 
interest,  in  conformity  with  the  general  rule  on  this  subject, 
that  equity  will  not  decree  specific  execution  of  a  contract, 
tmcertain  in  extent;  nor  against  a  party  not  competent  to 
execute  the  contract.  Thus,  a  tenant  for  life,  with  power  to 
make  leases  for  twenty-one  years,  at  the  best  improved  rent, 
made  a  lease  to  B.,  and  covenanted  "  for  the  term  of  his  life 
to  renew  said  lease  to  B.,  his  executors,  administrators,  and 
assigns,  by  giving  them  a  lease  for  twenty-one  years  when 

1  Jane  Hunter,  1  Edw.  1.  ^  Routledge  v.  Grant,  1  Moo.  &  P. 

2  Daniels  v.  Davison,  16  Ves.  249.  717. 

23 


266  LAW    OF   VENDORS    AND    PURCHASERS.  [ciI.  XVI. 

applied  to."  B.  surrendered  the  lease,  under  a  clause  em- 
powering him  so  to  do  ;  and,  afterwards,  upon  a  new  agree- 
ment, A.  indorsed  on  the  old  lease  "  I  promise  and  agree  to 
perfect  a  fresh  lease  to  B.  at  any  time  he  shall  demand  the 
same  at  £5  a  year  less  than  the  within-mentioned  rent."  It 
being  uncertain  whether  the  agi-ccment  was  for  more  than 
one  term  of  twenty  one  years,  and  an  agreement  for  a  fur- 
ther lease  (even  if  clear)  being  in  fraud  of  the  power,  a  bill 
for  a  renewal  of  the  lease  for  a  second  term  of  twenty-one 
years  was  dismissed.^  So,  a  bill  for  specific  performance  of 
an  agreement  to  renew  a  lease  was  dismissed,  the  agreement 
being  too  vague  and  uncertain  to  be  executed  by  the  Court.^ 
So,  the  Court  will  not  execute  a  contract  for  the  sale  of  a 
good  will,  but  will  leave  the  parties  to  law.^  An  agreement 
for  a  lease  for  seven,  fourteen,  or  twenty-one  years,  gives  the 
option  to  the  lessee  alone.^ 

12.  As  to  the  title  or  assurance  of  title,  which  the  vendee 
of  a  leasehold  may  demand,  it  is  held,  that,  if  a  contract  be 
made  for  the  sale  of  leasehold  property  unconditionally,  and 
not  merely  the  vendor's  interest  in  the  residue  of  the  term, 
and  a  proviso  that  he  will  not  warrant  his  lessor's  title ;  [a)  in 
order  to  enforce  the  contract,  he  is  bound  to  show  to  the 
satisfaction  of  the  purchaser,  that  his  lessor,  or  the  original 
grantor  of  the  term,  was  entitled  to  grant  the  lease,  [b)     If 

'  Harnett  v.  Yielding,  2  Scho.  &  Lef.  ^  Baxter  u.  Conolly,  1  Jac.  &  Walk. 
549.  576. 

2  Price  V.  Assheton,  1  ¥.&  Col.  441.        ''  Price  v.  Dyer,  17  Ves.  356. 


(a)  Whether  the  effect  of  advertising  for  sale  a  lease  in  possession  is 
equivalent  to  a  declaration  that  the  lessor's  title  cannot  be  produced,  qucere. 
Deverell  v.  Bolton,  18  Ves.  505. 

(b)  And  the  implied  obligation  of  the  vendor  may  be  confirmed,  by  an 
implication  in  the  construction  of  the  agreement  itself.  Thus,  a  declaration 
alleged,  that  it  was  agreed  between  the  plaintiff  and  defendant,  that  the 
plaintiff  should  purchase  two  houses  of  the  defendant  for  the  residue  of  a 
term  of  years,  &c  ;  that  the  defendant  should  paper  them,  &c. ;  that  the 
plaintiff  should  pay  part  of  the  purchase-money  on  completion  of  the  con- 
veyance of  the  houses,  and  the  defendant  make  a  good  title.     The  agree- 


CH.  XVI.]  TITLE   TO   LEASEHOLDS.  267 

the  vendor  of  a  leasehold  interest  means  to  sell,  without  pro- 
ducing his  lessor's  title,  he  ought  to  declare  it.  So,  though 
the  lease  was  originally  granted  by  a  lay  corporation,  (a)  or 
is  very  old.^  (b)  So,  a  contract  for  the  sale  of  an  existing 
and  a  reversionary  lease  will  not  be  specifically  performed 
without  a  production  of  the  title  of  the  lessors.^ 

13.  Memorandum  of  an  agreement,  dated  the  15th  of 
May,  for  sale  and  purchase  of  leasehold  property,  described 
therein  as  "  a  messuage  held  for  the  remainder  of  a  term  of 
years  under  the  Corporation  of  Bath,  and  the  late  R.  A.,  at 
the  sum,  &c. ; "  an  abstract  to  be  made  out  and  delivered  by 
the  vendor,  and  the  assignment  to  be  made  and  prepared  at 
the  expense  of  the  purchaser,  the  purchase-money  to  be  paid 
at  or  before  midsummer.  The  contents  of  two  existing 
deeds  were  not  introduced  in  the  abstract,  delivered  on  the 
24th  of  May;  though  they  were  contained  in  an  abstract 
delivered  on  the  3d  of  September.     Held,  on  exception  to 

1  Souter  V.  Drake,  5  B.  &  Ad.  992 ;  Betty,  4  Mann.  &  G.  410  ;  Ogilvie  v. 
Purvis  V.  Rayer,  9  Price,  488 ;  Hall  v.    Foljambe,  13  Meri.  53. 

-Ucverell  v.  Bolton,  18  Ves.  505. 


ment  was  as  follows :  "  Mr.  H.  (the  plaintiff)  having  agreed  to  purchase  of 
Mr.  B.  (the  defendant)  two  leasehold  houses,  &c.,  Mr.  B.  hereby  agrees 
to  paper,  &e. ;  Mr.  H.  to  pay,  &c.,  at  the  time  of  the  conveyance.  &c." 
Nothing  was  said  in  the  agreement  as  to  making  a  title.  Held,  the  agree- 
ment to  purchase,  though  recited  as  an  existing  agreement,  was  to  be  con- 
sidered as  forming  part  of  the  agreement  produced.  Hall  v.  Betty,  4  Mann. 
&  Gra.  410.  So,  a  contract  for  a  lease  by  a  mortgagor  cannot  be  enforced 
by  him,  without  obtaining  a  reconveyance  of  the  mortgage,  or  procuring 
the  mortgagee  to  confirm  the  lease.  But  a  tenant  holding  under  such  con- 
tract cannot  compel  the  landlord  to  pay  off  the  mortgage,  to  give  effect  to 
the  contract.     Costigan  v.  Hastier,  2  Scho.  &  Lef.  160. 

(a)  The  rule  has  been  held  not  to  ajjply  to  a  Bishop's  lease.  Fane  v. 
Spencer,  2  Meri.  430. 

(b)  But  it  has  been  held,  that,  to  make  a  good  title  to  the  residue  of  an 
old  term,  mesne  assignments,  which  cannot  be  produced,  will  be  presumed, 
even  at  law.  But  an  old  incumbrance  must  be  attended  to,  unless  it  can 
be  presumed  that  it  does  not  exist.     White  v.  Foljambe,  11  Ves.  337. 


268  LAW  OF  VENDORS  AND  PUECnASERS.      [CH.  XVI. 

the  report  of  the  master,  adverse  to  the  title,  that  the  pur- 
chaser might  abandon  his  contract.^ 

14.  On  a  sale  by  auction  of  leasehold  property,  one  of 
the  conditions  was,  that  the  vendor  "  should  not  be  obliged 
to  produce  the  lessor's  title."  The  vendee  having  aliunde 
discovered  certain  defects  in  the  title,  held,  notwithstanding 
the  condition,  he  was  entitled  to  insist  upon  those  defects.^ 
So,  a  purchaser  is  not  compellable  to  accept  a  title  to  lease- 
hold premises,  formerly  subject  to  an  incumbrance,  the  dis- 
charge of  which  is  shown  only  by  presumption.  Thus,  a 
leasehold  was  sold,  subject  to  a  ground-rent,  which  was  said 
to  be  apportioned  out  of  a  larger  rent,  but  the  apportionment 
was  not  evidenced  by  any  existing  deed,  but  only  by  the 
acceptance  of  a  mesne  landlord,  and  presumption.  Held, 
the  purchaser  was  not  bound  to  accept  the  title.-'^  So  an 
assignee  of  a  lease,  to  show  his  interest  in  the  premises,  is 
bound  to  prove  the  execution  of  the  lease  and  all  the  mesne 
assignments.* 

15.  In  an  action  against  a  purchaser  of  a  leasehold  at 
auction  for  not  completing,  the  declaration  averred,  that  the 
vendor  had  delivered  an  abstract  of  title,  pursuant  to  the 
conditions  of  sale,  which  averment  was  traversed  by  the 
plea.  Held,  the  allegation  was  not  sustained,  by  proof  that 
the  vendor  caused  the  lease  and  assignment,  which  com- 
posed the  whole  title,  to  be  handed  to  the  purchaser  for 
perusal,  and  offered  to  send  them  to  his  attorney,  to  enable 
him  to  prepare  the  necessary  assignment.^ 

16.  Property  was  put  up  for  sale  by  auction,  described  as 
"  a  leasehold  ground-rent  of  X23  reserved  by  a  mesne  lease  of 
certain  premises  for  ninety-eight  years  wanting  seven  days, 
and  assigned  apart  from  the  reversion  for  the  remainder  of 
the  term  by  an  indenture  of  1817."  By  the  conditions  of 
sale,  no  title  prior  to  the  assignment,  nor  the  title  of  any 

1  Pnrvis  v.  Eayer,  9  Pric5,  488.  ^  Barnwall  v.  Harris,  1  Taunt.  4.30. 

2  Sliupherd  v.  Keatley,  1  Cro.  Mees.  *  Crosby  v.  Percy,  1  Camp.  Ca.  303. 
&  Rose.  117.  5  Home  v.   Wingtield,  3  Scott's  N. 

C.  340. 


CH.  XVI.]  TITLE   TO   LEASEHOLDS.  269 

ground  or  mesne  landlord  was  to  be  produced.  From  a 
recital  in  the  deed  of  1817,  it  appeared  that  the  property 
out  of  which  the  rent  issued  had  been  originally  demised, 
with  other  property,  at  a  rent  of  XIO,  subject  to  the  cov- 
enants, conditions,  and  agreements  in  the  original  demise 
contained.  Held,  that,  under  such  circumstances,  a  good 
title  was  not  made  to  the  rent  of  .£23,  inasmuch  as  it  ap- 
peared upon  the  face  of  the  deed  of  1817,  that  upon  failure 
of  payment  of  the  ,£10  rent,  the  rent  of  £23  might  be  liable 
to  diminution  or  forfeiture.^ 

17.  Bill  by  a  vendor  for  specific  performance  of  an  agree- 
ment to  take  a  lease  for  twenty-one  years  at  rack-rent.  The 
master  reported  in  favor  of  the  title  shown  by  the  abstract, 
but  exception  was  taken  to  the  report.  Held,  in  the  absence 
of  an  express  agreement,  such  vendor  is  bound  to  produce 
the  title  of  his  lessor.  The  principle  was  laid  down,  that 
whether  the  interest  contracted  for  be  freehold  or  leasehold, 
for  a  long  term  of  years,  or  a  short  lease  at  rack-rent,  the 
party  who  comes  for  specific  performance  should  be  prepared 
to  show,  that  he  is  able  to  give  what  he  seeks  to  compel  the 
other  to  take.  It  was  questioned  whether  the  rule  applies, 
where  the  length  of  possession  under  the  original  lease  has 
been  sufficient  to  raise  a  presumption  of  title.^ 

18.  Declaration  in  assumpsit,  that  the  plaintiff  put  up 
leasehold  premises  at  auction,  subject  to  conditions  that  the 
purchaser  should  complete  the  purchase  by  a  certain  day, 
and  the  plaintiff  deduce  a  good  title,  commencing  with  the 
lease  under  which  they  were  then  held.  Breach,  that 
although  the  plaintiff  did  deduce  a  good  title,  commencing 
with  the  lease,  the  defendant  did  not  complete  the  purchase 
according  to  contract.  Plea,  that  the  premises  were,  on,  &c., 
demised  by  T.  L.  to  W.  B.  for  a  term  still  subsisting,  subject 
to  a  covenant  by  W.  B.  to  keep  the  premises  in  repair,  and 
for  reentry  by  T.  L.  in  default  thereof;  that  the  interest  of 

1  Taylor  v.  Martindale,  1  Y.  &  Coll.  '^  Fildes  v.  Hooker,  2  Mer.  424. 

658. 

23* 


270  LAW   OF   VENDORS   AND   PURCHASERS.  [CH.  XVI. 

W.  B.  vested  by  assignment  in  the  plaintiff,  and  that  the 
plaint  iff,  after  the  assignment,  snfiered  the  premises  to  be 
out  of  repair,  and  they  continued  so  up  to  the  time  of  sale, 
so  that  the  term  might  at  the  option  of  T.  L.  be  determined ; 
and  that  the  plaintiff',  by  reason  of  the  premises,  had  not,  at 
the  time  of  the  sale  or  at  any  time  afterwards,  any  good  and 
valid  title  to  the  premises,  and  did  not  deduce  or  make  a 
good  title  to  the  defendant.  On  special  demurrer  to  these 
pleas,  the  former  was  held  bad,  as  being  an  argumentative 
denial  of  the  allegation  in  the  declaration,  that  the  plaintifT 
made  a  good  title  ;  and  the  latter,  on  the  ground  that,  if  the 
defendant  meant  to  object  to  the  validity  of  the  tease,  he 
ought  to  have  confessed  the  allegation  of  title  in  the  decla- 
ration as  it  stood,  and  then  to  have  pointed  the  plea  specifi- 
cally to  the  objection  that  the  lessor  had  not  title.^ 

19.  Plaintiff"  put  up  to  sale  by  auction  a  lease  of  prem- 
ises, which  he  occupied  as  assignee  of  the  lease,  stipulating 
not  to  produce  any  title  prior  to  the  lease.  In  an  action 
against  a  purchaser  for  not  completing  his  purchase,  the 
plaintiff"  declared  that  he  was  possessed  of  the  lease.  Held, 
the  defendant  having  rejected  the  abstract,  that  the  plaintiff" 
was  bound  to  prove  the  execution'  of  the  lease  by  the  attest- 
ing witness,  and  that  it  was  not  sufficient  to  prove  the 
assignment  to  himself.^ 

20.  A.  had  purchased  at  auction  an  under-lessee's  interest 
in  a  house,  and  refused  to  pay  a  check  given  for  the  deposit, 
because  the  ground-rent,  payable  to  the  superior  landlord, 
was  greater  than  it  was  stated  to  be  at  the  sale.  Held,  the 
superior  landlord's  solicitor  was  not  compellable  to  produce 
the  counterpart  of  the  original  lease,  nor  could  a  person  who 
had  advanced  money  on  that  lease,  and  held  it  as  equitable 
mortgagee,  be  compelled  to  produce  the  lease  itself ;  but  if 
both  these,  on  being  called  as  witnesses,  refused  to  produce 
the  lease  and  counterpart,  secondary  evidence  might  be  given 

1  Wheeler  v.  Wright,  7  Mees.  &  W.  ^  Laythoarp  u.  Bryant,  1  Bing.  N.  C. 
359.  421. 


CH.  XVI.]  TITLE   TO    LEASEHOLDS.  271 

of  the  contents  of  the  lease,  by  calling  any  person  who  had 
seen  it,  and  who  neither  claimed  under  it  as  one  of  his  own 
title  deeds,  nor  was  privileged  as  an  attorney  or  solicitor.^ 

21.  The  purchaser  of  a  lease,  though  not  so  far  a  pur- 
chaser for  valuable  consideration,  without  notice,  as  not  to 
be  bound  to  know  from  whom  the  lessor  derived  his  title ; 
is  not  bound  to  take  notice  of  all  the  circumstances  under 
which  it  is  derived.  Therefore,  he  is  charged  with  notice, 
that  the  lessors  were  trustees  for  a  charity;  but  not  that  the 
lease  was  bad  ;  that  depending  on  circumstances  dehors? 

22.  But  the  general  rule,  as  to  requiring  production  of  the 
lessor's  title,  does  not  apply  where  the  terms  of  the  adver- 
tisement, proposal,  or  agreement  plainly  negative  such  an 
obligation,  (a)  Thus,  A.  agreed  to  sell  to  B.  the  two  leases 
and  good  will  in  trade  of  a  public-house  and  shop  adjoining 
for  ^4,250,  "  as  he  holds  the  same,"  for  terms  of  twenty- 
eight  years  from  midsummer  next  ensuing,  at  the  annual 
rent  therein  mentioned ;  and  B.  agreed  to  accept  a  proper 
assignment  of  the  said  leases  and  premises  as  above  described, 
without  requiring  the  lessor's  title ;  and,  upon  payment  of 
said  sum,  A.  agreed  to  execute  an  effectual  assignment  of 
the  said  leases,  and  deliver  up  possession  of  all  the  said 
premises.  Held,  the  vendee  was  to  purchase  without  inquir- 
ing into  the  title  of  the  lessor,  and  could  not  refuse  to  com- 
plete his  purchase  on  account  of  an  objection  to  that  title.^ 

23.  So  even  the  liability  of  the  purchaser  for  the  future 

1  Mills  V.  Oddy,  6  Car.  &  P.  728.  ^  gpratt  v.  Jeffery,  10  Barn.  &  Cress. 

2  Attorney- General  v.  Backhouse,  17     249. 
Ves.  283. 


(a)  Even  where  the  sale  is  a  general  one,  the  same  doctrine  has  been  some- 
times held.  Thus,  in  an  action  by  the  vendee  against  the  vendor  of  a  lease, 
for  the  deposit ;  it  was  held  that  the  vendor  is  not  bound  to  produce  his 
lessor's  title,  without  an  express  stipulation  to  that  eflfect.  George  v.  Pritch- 
ard,  1  Mood.  &  Ry.  417.  So  it  has  been  suggested,  that  the  owner  of  land, 
agreeing  to  grant  a  lease,  does  not  thereby  impliedly  engage  that  he  has  a 
good  title  in  fee,  and  will  deliver  a  written  abstract.  Temple  v.  Brown,  6 
Taunt.  60. 


272  LAW    OF   VENDORS    AND    PURCHASERS.  [cil.  XVI. 

default  of  a  third  person,  in  consequence  of  the  terms  of 
the  lease  sold,  has  been  held  not  to  alfect  the  validity  of  the 
sale.  Thus,  two  houses  held  under  one  lease  were  sold 
separately  to  A.  and  B.  The  lease  was  produced  and  in- 
spected at  the  sale  by  the  purchasers'  solicitors.  The  con- 
ditions of  sale  provided  for  the  apportionment  of  the  rent 
between  the  two  purchasers,  but  did  not  notice  covenants  to 
insure,  &c.,  and  a  proviso  for  reentry  on  non-performance, 
contained  in  the  lease.  Held,  though  A.  might  be  evicted 
by  the  default  of  B.,  still  he  was  bound  to  complete.'  So, 
on  a  sale  in  lots,  of  premises,  the  particulars  of  which  state 
them  to  be  held  under  one  lease  reserving  rent,  and  that  the 
purchaser  of  one  lot  is  to  be  exclusively  subject  to  the  rent, 
the  other  purchasers  cannot  object  to  the  title,  on  the  ground 
of  a  clause  of  reentry  or  non-payment,  contained  in  the 
lease.^ 

24.  While  the  production  of  title  may  be  dispensed  with 
by  the  special  terms  of  the  sale  itself ;  it  may  also  be  impli- 
edly waived  by  the  purchaser.  Such  implication,  however, 
must  be  clearly  established,  in  order  to  prevail  over  the  gen- 
eral rule  of  law.  Thus,  where  a  lessee  in  possession  con- 
tracted to  sell  the  residue  of  his  term,  being  three  years  and 
a  quarter,  at  the  rent  of  X42  per  annum,  the  vendee  paying 
,£30  for  the  fixtures,  as  per  list;  held,  it  was  not  to  be  in- 
ferred from  the  short  residue  of  the  term,  the  small  value  of 
the  property,  and  the  absence  of  any  premium  for  the  lease, 
that  the  vendee  intended  to  waive  his  right  to  call  for  the 
production  of  the  lessor's  title.'^  So  the  objection  to  the  title 
is  not  waived,  by  a  premature  conditional  approbation  of  it 
by  the  purchaser's  counsel ;  but  the  expense  of  making  out 
the  title,  before  this  objection  was  taken,  shall  be  repaid.* 

25.  In  a  suit  for  specific  performance  of  an  agreement  to 
accept  a  lease,  the  Court,  considering  the  defendant,  (the 
intended  lessee,)  by  his  conduct  to  have  waived  all  objec- 

'  Paterson  v.  Long,  6  Beav.  590.  ^  Senter  v.  Drake,  5  Barn.  &  Adol. 

2  Walter  v.  Maunde,  1  Jac.  &  Walk.     992. 
181.  *  Deverell  u.  Bolton,  18  Ves.  505. 


CH.  XVI.]  TITLE   TO   LEASEHOLDS.  273 

tions  to  the  vendor's  title,  decreed  a  specific  performance,  and 
referred  it  to  the  master  to  settle  the  lease.  In  settling  the 
lease,  it  became  necessary,  for  identifying  the  premises,  to 
produce  before  the  master  the  original  lease,  under  which 
the  plaintiff  was  entitled  to  the  property,  and  from  which 
lease  it  appeared,  that  the  property  in  question  was  held 
with  other  property,  at  one  entire  rent,  and  under  some 
special  covenants,  no  provision  with  respect  to  which  was 
made  in  the  agreement  between  the  plaintiff  and  the  de- 
fendant. On  the  hearing,  for  further  directions,  these  facts 
being  brought  before  the  Court  by  exceptions  to  the  report ; 
held,  though  the  defendant  had,  by  his  conduct,  waived  his 
right  to  the  production  of  the  lessor's  title,  yet,  as,  in  the 
course  of  the  proceedings,  it  had  become  necessary  to  pro- 
duce that  title,  and  that  production  showed  that  a  sufficient 
lease  could  not  be  made,  according  to  agreement,  the  Court 
would  not  enforce  a  specific  performance ;  and  the  bill  was 
dismissed,  but  without  costs.^ 

26.  Purchase  of  the  benefit  of  an  agreement  for  the  lease 
of  a  public-house,  and  also  of  the  stock  and  good  will. 
The  purchaser  entered  before  the  lease  had  been  granted, 
paid  part  of  the  purchase-money,  and  mortgaged  his  in- 
terest. Held,  that  after  this  mode  of  dealing,  he  could  not 
call  for  the  lessor's  title,  or  for  evidence  that  the  lease  was 
made  in  conformity  with  the  power  under  which  it  was 
granted.^ 

27.  In  reference  to  the  title  of  leasehold  property,  ques- 
tions often  arise  upon  the  necessity  and  effect  of  covenants 
for  the  protection  and  benefit  of  the  lessee  or  purchaser. 
Thus,  in  addition  to  the  rule  above  stated,  as  to  the  implied 
obligation  in  the  sale  of  leasehold  estates  to  give  a  good  title 
to  the  purchaser,  an  agreement  for  a  lease  often  stipulates 
for  the  insertion  in  such  lease  of  the  usual  covenants?  What 
covenants  fall  under  this  description,  depends  upon  various 

1  Warren  v.  Richardson,  You.  1.  '^  See   Sargent  v.   Adams,   3   Gray, 

2  Haydon  v.  Bell,  1  Beav.  337.  81. 


274  LAW  OF  VENDORS  AND  PURCHASERS.      [cu.   XVI. 

circumstances,  such  as  local  custom,  or  ihe  nature  of  the 
property  ;  but  it  is  always  a  question  of  ftxct  for  the  jury. 
It  has  been  held,  that  a  lessee  is  not  impliedly  bound  to  cov- 
enant that  he  will  not  carry  on  a  particular  trade  or  business 
on  the  premises  ;  nor  assign  nor  underlet  without  license ; 
nor  that  he  will  keep  the  premises  insured,  or  pay  tiie  taxes. 
Nor  is  the  lessor  impliedly  bound  to  covenant  that  he  will 
rebuild  in  case  of  fire,  and  that  the  rent  shall  cease  if  he. does 
not.  But  it  seems  he  is  bound  to  covenant  for  the  lessee's 
quiet  enjoyment,  as  against  the  lessor  or  those  claiming  un- 
der him.^ 

28.  Contract  for  an  assignment  of  a  lease  of  a  public- 
house,  which  was  described  as  holden  at  a  certain  net  rent, 
upon  usual  and  common  covenants.  The  lease  contained  a 
covenant  by  the  tenant,  to  pay  land-tax,  sewers-rate,  and  all 
other  taxes,  and  a  proviso  for  reentry,  if  any  business  but 
that  of  a  victualler  should  be  carried  on  in  the  house.  It 
was  proved,  that  a  considerable  majority  of  public-house 
leases  contained  such  a  proviso.  Held,  the  covenant  was  a 
common  one  in  a  lease  reserving  a  net  rent ;  and  the  proviso 
was  also  usual  and  common? 

29.  So  covenants  made  for  the  benefit  of  the  lessor  may 
come  in  question  upon  a  sale  of  the  lessee's  interest.  Thus, 
a  lessee,  subject  to  covenants,  cannot  compel  specific  perform- 
ance of  an  agreement  to  purchase  the  premises,  though  he 
offer  to  indemnify  the  purchaser  against  the  performance  of 
the  covenants.^  So  if  the  vendor  of  a  lease,  in  which  is  a 
covenant  not  to  assign,  contract  to  assign  his  interest,  it  is 
incumbent  on  him,  and  not  on  the  purchaser,  to  procure  the 
lessor's  license  for  the  assignment.^ 

30.  A.  agreed,  in  1814,  for  a  lease  of  building-ground  for 
seventy-five  years,  at  a  ground-rent,  containing  the  usual 
building  covenants  to  insure,  repair,  allow  lessor  to  enter  and 

1  Church    V.   Brown,    15    Ves.    258;  ^  Bennett  i;.  Womack,  7  Barn.  &  Cr. 

Bennett  v.   Womack,  7  B.  &  C.  627 ;  627. 

Doe  V.  Sandham,  1  T.  R.  705 ;  Van  v.  ^  Fildcs  v.  Hooker,  3  Madd.  193. 

Corp,  3  My.  &  K.  269.  *  Lloyd  v.  Crispe,  5  Taunt.  249. 


CH.  XVI.]  TITLE   TO   LEASEHOLDS.  275 

view  repairs,  &c. ;  and  that  in  case  of  non-payment  of  rent, 
or  breach  of  any  covenant,  the  lessor  was  to  have  the  right 
to  reenter.  The  lease  was  never  executed,  but  the  tenant 
entered,  and  built,  at  considerable  expense,  and  continued  in 
possession  up  to  his  decease  in  1843.  Up  to  that  time  the 
rent  was  paid  regularly,  but  the  covenants  to  repair  and 
insure  were  neglected.  Upon  the  decease  of  the  lessee,  dis- 
putes arose  in  the  ecclesiastical  court  as  to  the  right  to  repre- 
sentation to  his  estate,  and  probate  was  not  granted  until 
1847.  During  these  four  years  the  rent  was  in  arrear,  and 
the  covenants  to  insure  and  repair  were  totally  neglected. 
The  lessor  threatened  to  bring  ejectment.  Held,  on  a  bill 
brought  to  restrain  the  ejectment,  and  to  have  a  specific  per- 
formance of  the  agreement,  inasmuch  as  the  lessor,  if  the 
lease  had  been  formally  executed  in  1814,  would  now  have 
had  a  right  to  determine  it  by  breach  of  covenant,  the  Court 
would  not  decree  specific  performance ;  and  that  the  disputes 
in  the  ecclesiastical  courts  did  not  afford  sufficient  ground 
for  relief.^ 

31.  It  has  already  been  considered,  (Ch.  13,)  how  far  non- 
compliance in  part  with  the  terms  and  conditions  of  sale 
furnishes  ground  for  avoiding  the  contract  or  demanding 
proportional  compensation.  Most  of  the  cases  on  this 
subject  relate  to  the  transfer  of  estates  in  fee  simple.  But 
substantially  the  same  principles  have  been  applied  to  the 
sale  of  leasehold  interests. 

32.  It  has  been  held  that  a  lease,  deliberately  executed, 
cannot  be  set  aside,  on  account  of  an  unfounded,  though 
justifiable  assertion  of  the  lessor  pending  the  treaty,  there 
being  no  wilful  misrepresentation  ;  nor  on  the  ground  of 
mistake,  from  an  omission  of  a  general  warranty ;  such  war- 
ranty not  constituting  part  of  the  agreement.^ 

33.  A.  having  agreed  to  purchase  of  B.  the  remainder  of  a 
term,  B.  delivered  him  the  lease,  in  order  that  he  might  pro- 


1  Gregory  v.  Wilson,  10  Eng.  Law  &        -  Legge   v.  Croker,  1  Ball.  &  Beat. 
Eq.  133.  506. 


276         LAW  OF  VENDORS  AND  PURCHASERS.     [CH.  XVI. 

cure  an  assignment.  A.  then  obtained  an  enlargement  of 
the  term  from  the  original  landlord,  and  refused  to  accept  an 
assignment  or  pay  the  full  i)rice,  because  B.'s  under-tenant 
had  removed  fixtures.  Held,  no  sufficient  objection  to  ac- 
cepting the  assignment^ 

34.  A  particular,  describing  a  lease,  as  subject  to  notice  to 
quit,  is  not  inconsistent  with  a  covenant,  that  the  tenant 
shall  hold  over  for  a  certain  time  "  after  the  end  of  the  term ;" 
that  being  upon  the  context  distinguished  from  the  "  other 
sooner  determination ;"  and  time,  generally,  not  being  of  the 
essence  of  the  contract.^ 

35.  The  principle  of  compensation  (see  Ch.  13,)  has  been 
applied  to  the  sale  of  leasehold  estates,  where  the  contract 
is  but  partially  completed.  Thus,  the  defendant  contracted 
to  sell  an  inn  to  the  plaintiff,  and  in  the  treaty  represented  to 
him,  that  the  agreement,  under  which  the  tenant  in  posses- 
sion held  it,  was  void,  and  that  he  would  give  the  plaintiff 
possession  at  Michaelmas  following.  He  had  given  the  ten- 
ant notice  to  quit  at  that  time ;  but  the  tenant  did  not  quit. 
Held,  the  plaintiff  might  be  released  from  the  agreement, 
or  at  his  election  perform  it,  and  have  compensation  with 
costs.^ 

36.  Bill  for  general  relief.  The  plaintiffs  entered  into  an 
agreement  with  the  defendants  for  a  lease  of  thirty-one  years, 
but  could  obtain  from  them  a  legal  lease  for  only  twenty- 
one  years,  and  a  covenant  for  a  further  term  of  ten  years. 
Although  the  bill  was  framed  with  a  view  to  a  different  re- 
lief, yet,  inasmuch  as  upon  the  whole  statement  of  the  bill 
such  appeared  to  be  the  equity  between  the  parties,  and  in 
order  to  avoid  future  litigation,  the  Court  decreed  that  the 
plaintiffs  should  accept  the  lease  and  covenants,  with  com- 
pensation."^ So  the  particular  of  a  church  lease  represented  it 
as  for  twenty-one  years,  with  covenants  for  renewals  to  sixty- 
three  years  ;  the  lease  being  actually  for  lives  ;  and  the  cove- 

1  Parrv  v.  Frame,  2  Bos.  &  Pull.  451.  *  Hanbury   v.  Litchfield,    2   Myl.    & 

2  Hall'u.  Smith,  14  Ves.  426.  Kee.  629. 
^  Besant  v.  llichards,  Tamlyn,  509. 


CH.  XVI.]  TITLE   TO    LEASEHOLDS.  277 

nants  limited  and  contingent.  Specific  performance  was 
decreed,  upon  the  bill  of  the  purchaser,  with  compensation, 
if  to  be  ascertained,  by  reduction  of  the  purchase-money ;  if 
not,  or  if  the  plaintiff  would  so  take  it,  with  an  indemnity ; 
the  defendant  proposing  an  option  to  take  it  as  it  was,  or 
relinquish  the  contract.^ 

37.  Bat  where  a  bill  for  specific  performance  of  an  agree- 
ment for  a  lease,  signed  by  the  grantor  only,  and  contrary 
to  his  leasing  power,  of  which  the  plaintiff'  had  notice,  was 
afterwards  amended ;  and  prayed  an  execution  of  the  agree- 
ment for  the  life  of  the  grantor,  without  requiring  compensa- 
tion for  the  difference  of  interest ;  held,  the  bill  should  be 
dismissed,  the  case  proved  for  the  plamtiff  creating  doubts 
and  suspicions  of  the  fairness  of  the  transaction.^ 

88.  So  compensation  will  not  be  decreed,  if  the  purchaser 
would  thereby  lose  the  substantial  benefits  of  the  contract. 
Thus,  an  indefinite  representation  by  the  vendor,  that  a  lease- 
hold estate  was  nearly  equal  to  freehold,  being  renewable 
upon  a  small  fine,  under  certain  circumstances,  may  be 
fraudulent,  and  furnish  ground  for  rescinding  the  contract.* 
So  where  leasehold  premises  are  sold  by  auction,  and  the 
lease  containing  the  usual  covenant  to  repair  is  produced 
and  read  to  the  bidders,  if  any  of  the  buildings  demised  and 
described  in  the  lease,  though  not  in  the  particulars,  have 
been  pulled  down,  the  purchaser  is  not  bound  to  complete 
the  purchase,  and  may  recover  back  his  deposit.^ 

39.  On  a  sale  of  a  leasehold  interest  of  lands,  described  in 
the  particulars  as  held  for  a  term  of  twenty-three  years  at  a 
rent  of  £55,  and  as  comprising  a  yard,  one  of  the  conditions 
was,  that,  if  any  mistake  should  be  made  in  the  description 
of  the  property,  or  any  other  error  whatever  should  appear  in 
the  particulars  of  the  estate,  it  should  not  annul  or  vitiate 
the  sale,  but  a  compensation  should  be  made,  to  be  settled 


1  Milligan  v.  Cooke,  16  Ves.  1.  ^  Fenton  v.  Brown,  14  Ves.  143. 

-  O'Rourke  v.  Percival,  2  Ball.  &  Bea.        *  Granger  v.  Worms,  4  Campb.  83. 
56. 

24 


278  LAW   OF   VENDORS   AND   PDRCnASERS.  [cn.  XVI. 

by  arbitration.  The  yard  was  not,  in  fact,  comprehended  in 
the  i)roj)erty  sold  for  the  term  at  £rj6,  but  was  held  by  the 
vendor  from  year  to  year,  at  an  additional  rent ;  and  it  was 
essential  to  the  enjoymcnit  of  tlie  property  leased  for  the 
twenty-three  years.  It  did  not  appear  that  the  vendor  knew 
of  the  defect.  Held,  this  defect  avoided  the  sale,  and  was 
not  a  mistake  to  be  compensated  for  under  the  above  con- 
dition ;  although,  after  the  day  named  in  the  conditions  for 
completing  the  purchase,  and  before  action  brought  by  the 
vendee,  the  vendor  procured  a  lease  of  the  yard  for  the  term 
to  the  vendee,  and  offered  it  to  him.^ 

40.  The  conditions  of  sale  of  the  lease  of  a  public-house 
described  it  as  "  a  free  public-house."  The  lease  contained 
a  covenant,  that  the  lessee  and  his  assigns  should  take  their 
beer  from  a  particular  brewer ;  this  lease  was  all  read  over 
by  the  auctioneer  at  the  sale,  and  he  said  by  mistake,  that  it 
was  a  free  public-house,  and  that  this  covenant  had  been  de- 
cided to  be  bad.  Held,  a  purchaser,  who  heard  the  lease 
read  over,  was  not  bound  to  complete  the  purchase,  but  was 
entitled  to  recover  back  the  deposit.^ 

41.  A  lessee  of  lands,  subject  to  a  covenant  against  certain 
obnoxious  trades,  with  a  proviso  for  reentry,  grants  under- 
leases of  houses  erected  on  the  land,  not  containing  a  similar 
covenant  and  proviso.  Held,  that  a  purchaser  by  auction  of 
houses  on  the  land,  and  of  the  improved  ground  rents  of  the 
houses  so  underlet,  might  recover  back  his  deposit-money, 
this  omission  in  the  under-leases  not  having  been  mentioned 
in  the  conditions  of  sale.^ 

42.  Certain  leasehold  houses  were  sold  by  auction,  described 
in  the  particulars  and  conditions  of  sale,  as  a  well  secured  ren- 
tal with  reversionary  interest,  and  an  eligible  investment,  but 
without  warranty  of  title.  By  a  local  act,  for  the  establish- 
ment of  the  South  London  Market  Company,  the  company 


1  Dobell  V.  Hutchinson,  3  Adol.   &        ^  Wai-ing  v.  Hoggart,  1  Ry.  &  Mood. 
Ell.  335.  39. 

■^  Jones  V.  Edney,  3  Campb.  285. 


CH.  XVI.]  TITLE   TO    LEASEHOLDS.  279 

were  authorized  to  treat  for,  purchase,  and  take  the  premises 
for  the  purposes  of  the  act.  No  notice  was  given  of  this 
liability  in  the  particulars  and  conditions ;  and  the  vendee 
had  no  notice  of  it.  The  conditions  contained  no  express 
warranty  of  title.  Held,  this  sale  did  not  involve  a  warranty 
of  a  clear  title,  free  from  all  charges,  incumbrances,  and  liabil- 
ities ;  but  the  purchaser  was  entitled  to  rescind  the  contract.^ 

43.  Sale  by  auction,  of  a  lot  described  in  the  particulars, 
as  "  eleven  houses.  No.  1,  2,  3,  &c.,  situate,  &c.,  held  by  lease 
of  A."  Previous  to  the  lease,  a  small  part  of  the  ground 
of  No.  2  was  subtracted  from  the  possession  of  the  lessee ; 
but  the  lease  contained  a  description  and  plan,  in  the  r^ar- 
gin,  of  the  whole  ground  plot,  including  this  part.  Held, 
although  in  equity  A.  should  not  be  entitled  to  enforce  the 
covenants  in  the  lease  as  to  that  part  of  the  ground,  yet,  the 
particulars  referring  to  the  lease,  without  an  exception  of 
this  plot,  the  purchaser  was  entitled  to  demand  a  title  to 
the  whole  estate  contained  in  the  lease,  and  an  assignment 
of  the  lease  was  not  sufficient.^ 

44.  A  lessor  covenanted,  that,  if  the  lesse^e  should  erect  a 
two-story  dwelling-house,  corresponding  in  elevation  with  a 
house  ai ready  built  on  a  part  of  the  premises,  the  lessor,  at 
the  termination  of  the  lease,  would  pay  for  the  building,  at  a 
valuation  to  be  made  by  appraisers,  to  be  appointed  by  the 
parties.  The  tenant  erected  a  building  which  did  not  cor- 
respond in  height  with  the  dwelling  referred  to,  and  was 
finished  for  a  cabinet-maker's  shop,  but  was  capable  of  being 
converted  into  a  dwelling-house  in  a  few  days'  time,  at  a 
moderate  expense.  The  lessor  had  early  knowledge  of  the 
character  of  the  building,  and  made  no  objection,  nor  did  he 
give  any  intimation  that  he  should  refuse  to  pay  for.  it,  until 
just  before  the  lease  expired,  when  it  was  too  late  to  make 
the  building  conform  to  the  requirement  of  the  lease.  Be- 
fore the  lease  expired,  he  concurred  in  the  appointment  of 


1  Ballard  v.  Way,  1  Mees.  &  Wels.        ^  Tomkins  v.  White,  3  Smith,  435. 
520. 


280  LAW   OF  VENDORS  AND   PURCnASEIlS.  [CII.  XVI. 

appraisers,  who  met.  and  examined  the  premises  in  presence 
of  the  parties.  Three  days  before  the  lease  expired,  the 
lessor  informed  the  a})praisers,  that  the  building  was  not 
according  to  contract,  and  insisted  that  the  lessee  had  no 
claim  for  compensation.  No  award  was  made  by  the  ap- 
praisers. On  a  bill  fil(>d  by  the  lessee  for  relief,  and  to  com- 
pel payment  of  the  value  of  the  building ;  held,  not  a  case 
of  fraud  ;  that  the  lessor  might  set  up  the  defence,  that 
the  building  did  not  conform  to  the  contract ;  and  that  the 
bill  could  not  be  sustained.^  , 

45.  The  plaintiff,  in  the  first  and  third  counts  of  his  decla- 
ration, alleged,  that,  at  the  time  of  making  the  agreement 
with  the  defendant,  he  was  possessed  of  a  house,  for  a  cer- 
tain term  of  years,  to  expire  on  the  25th  December,  1856  ;  and, 
in  the  second,  that  he  was  entitled  to  the  term,  under  and  bij 
virtue  of  a  certain  contract.  The  proof  was,  that  the  plain- 
tiff was  possessed  of  a  term  of  tivelve  years  only  ;  and  there 
was  no  contract  or  agreement  under  which  he  was  at  that 
time  entitled  to  an  extension  of  the  term.  Hf '  that  this 
was  a  fatal  variance,  although  it  appeared  that  the  plain- 
tiff had  since  become  possessed  of  a  lease  t<^  expire  in 
December,  1856.^  ' ' 

46.  In  the  sale  and  purchase  of  leaseholds,  as  in  other 
cases,  the  legal  rights  of  the  parties  may  be  varied  by  notice,  (a) 
Thus  the  purchaser  of  a  leasehold  is  held  to  contract,  with 

1  Pike  V.  Butler,  4  Comst.  360.         ^  Routledge  v.  Grant,  1  Mood.  &  P.  717. 

(a)  While  the  purchaser  of  a  leasehold  may  incur  certain  liabilities  and 
obligations  by  notice,  a  lessee  may  by  the  same  means  acquire  certain  rights 
as  against  a  purchaser  from  the  landlord.  Thus,  where  a  tenant  for  life 
granted  leases  for  lives  under  a  power,  and  bound  himself,  upon  the  drop- 
ping of  a  life,  to  grant  a  new  lease,  with  the  same  provision  for  renewal,  on 
the  death  of  any  person  to  be  named  in  any  future  lease ;  and  afterwards 
joined  in  a  sale ;  though  the  power  is  exceeded,  yet,  if  a  life  drops  in  the 
life  of  the  lessor,  the  purchaser,  having  notice,  must  specifically  perform  by 
granting  a  new  lease  with  the  same  provision. 

General  notice  to  a  purchaser,  that  there  are  leases,  is  notice  of  all  their 
contents.     So  a  purchaser,  being  told  that  a  part  of  the  estate  was  in  pos- 


CH.  XVI.]  TITLE   TO   LEASEHOLDS.  281 

notice  of  the  clauses  of  the  lease.^  And  a  purchaser  of  the 
right  and  interest  of  another,  under  a  contract  for  a  lease, 
with  full  notice  of  the  nature  of  it,  cannot  object  to  payment 
of  the  consideration,  either  on  the  ground  that  such  contract 
is  not  binding  on  the  vendor,  or  for  want  of  title.^  So  the 
mortgagee  of  a  lease,  which  recited  the  surrender  of  a  former 
lease,  which  was  in  consideration  of  the  surrender  of  a  for- 
mer lease,  in  Avhich  the  plaintitT's  title  appeared ;  was  held 
to  have  notice  of  the  title.^ 

47.  But,  a  landlord  having  given  notice  to  his  lessee,  (un- 
der a  covenant  in  the  lease,)  that  he  would  reenter,  if  the 
premises  were  not  put  into  repair  within  three  months  ;  if 
an  auctioneer  sell  the  lease,  without  communicating  such 
notice,  the  vendee  may  recover  his  deposit,  although  he  knew 
the  dilapidated  state  of  the  premises  at  the  time  of  sale.^ 

48.  Questions  have  sometimes  arisen,  as  to  the  introduc- 
tion of  jjcifol  evidence  to  explain  or  vary  written  agreements 
relating  to  leaseholds.  In  general,  such  evidence  is  not  ad- 
missible f(  ^  this  purpose.  Thus,  to  prove  a  rent  beyond 
that  expressed  in  the  agreement.^  Nor,  (in  support  of  a  bill 
for  specific  performance,)  to  prove,  from  conversations  before 
and  at  t  le  time  of  signing  such  agreement,  that  the  premises 
were  to  be  "  clear  of  all  taxes,"  the  memorandum  being 

1  Walter  v.  Maunde,  1  Jac.  &  W.  181 ;  ^  Coppin  v.  rernyhough,  2  Bro.  C.  C. 

Taylor  v.  Stibbert,  2  Ves.  437.  291. 

'^  Baxter  v.   Conolly,   1   Ja-c.   &  W.  *  Stevens  v.  Adamson,  2  Stark.  422. 

576.  °  Preston  v.  Merceau,  2  Black.  1250. 

session  of  a  tenant,  was  held  bound  by  the  lease.  Taylor  v.  Stibbert,  2 
Ves.  437. 

C.,  being  about  to  marry,  applied  to  A.,  his  landlord,  and  requested  him 
to  change  a  cestui  que  vie  in  his  lease,  by  inserting,  in  the  place  of  an  old 
life,  the  name  of  his  intended  wife,  which  A.  by  letter  promised  to  do.  Upon 
the  faith  of  such  promise  the  marriage  was  had,  and  the  demised  premises 
settled  upon  the  wife.  Upon  a  bill  by  the  wife,  (C.  being  dead,)  it  was 
held,  that  she  would  have  been  entitled  to  specific  execution  against  A. ; 
and,  the  estate  of  A.  having  been  sold  to  O.,  who  was  deemed  under  the 
circumstances  to  have  had  notice  of  the  agreement,  he  was  decreed  specifi- 
cally to  perform  it.  Crofton  v.  Ormsby,  2  Scho.  &  Lef.  583. 
24* 


282  LAW    OF   VENDORS    AND   PURCHASERS.  [cil.  XVI. 

written  by  the  lessee,  and  these  words  omitted.^  But  specific 
performance  was  decreed,  (after  a  trial  at  law,)  of  a  parol 
undertaking  by  the  assignee  of  a  lease,  to  indemnify  the 
original  lessee,  (the  vendor,)  against  the  rent  and  covenants ; 
a  presumption  arising  from  the  nature  of  the  transaction, 
and  the  assignment  being  "  subject  to  the  rents  and  cove- 
nants on  the  part  of  the  lessee  ; "  although  the  conditions  of 
the  auction  sale  expressed  no  such  engagement.^ 

49.  A  purchaser,  who  in  his  written  contract  stipulates  for 
a  good  title,  cannot  be  required  to  complete  the  purchase 
upon  a  defective  title,  on  the  ground  of  a  verbal  waiver  of 
such  stipulation.^ 

50.  In  assumpsit,  the  first  count  recited  an  agreement, 
that  plaintiff  should  grant,  and  defendant  take,  a  lease  of 
lands ;  and  that  all  straw,  &c.,  on  the  lands  when  possession 
was  given  up,  should  be  valued  by  persons  named  respec- 
tively by  the  parties,  and  the  amount  paid  ;  that,  on  the 
execution  of  the  lease,  defendant  should  accept  it,  and  exe- 
cute a  counterpart  ;  and  that  either  party  making  default 
should  forfeit  ,£300 ;  that  there  were  mutual  promises  to 
perform  the  agreement ;  that  defendant  entered,  and  took 
possession  of  the  straw,  &c. ;  that  he  afterwards  proposed 
that  the  straw,  &c.,  should  be  valued  to  the  plaintiff  by  a 
third  person,  and  the  plaintiff  assented  that  it  was  so  valued  ; 
that  the  plaintiff  was  ready  to  grant  the  lease,  but  the  de- 
fendant did  not  pay  the  amount  of  the  valuation. 

Second  count,  for  goods  bargained  and  sold,  and  taken  by 
the  defendant  under  such  bargain  and  sale. 

Plea  to  the  first  count,  that  the  first  agreement  was  in 
writing,  signed  by  plaintiff  and  defendant,  and  the  proposal 
and  assent  for  the  valuation  only  verbal.  To  the  second 
count,  that  the  goods  consisted  of  straw,  &c.,  which  were 
bargained  and  sold  under  a  written  agreement,  by  which 
they  were  to  be  valued  by  persons  chosen  respectively  by 


1  Rich  V.  Jackson,  4  Bro.  C.  C.  518.  ^  Qogg  j,^  ^grd  Nugent,  2  Nev.  &  Man, 

2  Pember  v.  Mathers,  1  Bro.  C.  C.  52.        35. 


CH.  xvl]  title  to  leaseholds.  283 

plaintiff  and  defendant  ;  and  that  no  such  valuation  had 
been  made,  but  only  a  valuation  (as  above) ;  that  defendant 
was  ready,  and  had  proposed,  that  they  should  be  valued  as 
in  the  agreement ;  but  plaintiff  refused. 

Replication,  1.  to  the  plea  to  the  first  count,  that  by  the 
proposal,  assent,  and  valuation,  the  parties  respectively  waived 
so  much  of  the  agreement  as  related  to  the  valuation,  and 
substituted  the  other  valuation  ;  2.  to  the  plea  to  the  second 
count,  that  the  straw,  &c.,  was  bargained  and  sold  under 
the  agreement  in  the  first  count  mentioned  ;  that  afterwards 
defendant  proposed,  &c.,  (as  in  first  count,)  and  plaintiff 
assented,  and  it  was  valued  accordingly  ;  by  means  of  which 
plaintiff  and  defendant  waived,  &c.,  (as  in  the  replication  to 
the  plea  to  the  first  count.) 

Rejoinder  to  replication  1,  that  the  waiver  and  substitu- 
tion were  by  word  of  mouth  only.  To  replication  2,  that 
the  proposal  and  assent  were  by  word  of  mouth  only. 

On  general  demurrer  to  the  rejoinder  ;  held,  that  the  orig- 
inal was  an  entire  agreement  relating  to  an  interest  in  lands, 
and  necessarily  in  writing ;  that,  even  if  the  parties  could 
waive  the  whole  verbally,  they  had  not  done  so  ;  and  that  a 
part  could  not  be  verbally  waived,  even  though  in  itself  not 
required  to  be  in  writing.^ 

51.  The  application  of  the  Statute  of  Frauds  to  the  sale 
and  purchase  of  leasehold  interests  has  often  been  brought 
in  question. 

52.  An  agreement,  by  one  having  a  term  for  years,  to  give 
up  possession  to  another,  and  allow  him  to  become  tenant 
for  the  residue  of  the  term,  in  consideration  of  his  paying  in 
part  for  certain  repairs,  is  within  the  statute.^ 

53.  So  an  agreement  by  a  termor  to  quit  on  a  certain 
day,  and  pay  all  outgoings  up  to  that  time,  in  consideration 
of  a  sum  to  be  paid  him  by  one  who  has  agreed  with  the 
landlord  for  a  lease  at  the  end  of  the  subsisting  one.^  So 
the  statute  is  a  good  defence  to  a  parol  variation  of  an 

1  Harvey  v.  Graham,  5  Adol.  &  Ell.        ^  Buttemer  v.  Hayes,  3  Jur.  70-t. 
61.  3  Smith  V.  Tombs,  3  Jur.  72. 


284  LAAV   OF   VENDOKS   AND    PimCHASERS.  [ciI.  XVI. 

agreement  for  a  lease.  But  not  if  it  only  amounts  to  a 
waiver  in  part,  or  to  a  declaration  of  trust.^  A  parol  agree- 
ment made  in  the  course  of  proceeding  before  an  arl)itrator, 
that  he  shall  determine  as  to  a  lease  to  be  granted,  is  within 
the  statute,  and  an  award  for  a  lease  cannot  be  enforced.^ 

54.  Upon  the  point,  what  constitutes  a  sullicient  signing 
or  memorandum,  it  has  been  held  that  the  bare  entry  of  a 
steward,  in  his  lord's  contract-book  with  his  tenants,  is  not 
evidence  of  itself  of  an  agreement  for  a  lease  between  the 
lord  and  a  tenant.^  But  where  A.  agrees  by  parol  with  B. 
for  a  lease,  which  is  drawn,  and  then  perused  and  corrected 
by  A.'s  counsel,  and  afterwards  engrossed  and  executed  by 
B. ;  it  has  been  doubted  whether  this  is  within  the  statute 
as  to  A.^  And  if  a  party  has  entered  into  a  parol  agreement 
for  a  lease,  and  a  draft  of  it  is  prepared,  though  the  agree- 
ment is  void  under  the  statute,  yet  he  will  be  bound  by  an 
indorsement  on  the  draft  referring  to  the  case.^ 

55.  The  question  has  been  raised,  whether  a  signing  bi/ 
an  agent  is  a  sufficient  compliance  with  the  statute. 

56.  A.  was  tenant  for  life,  with  power  to  lease  by  deed, 
reserving  the  best  yearly  rent.  The  plaintiff  entered  into 
possession,  and  expends  money  in  building  under  an  agree- 
ment for  a  lease,  proved  only  by  the  memorandum  in  writing, 
entered  in  the  book  of  A.'s  authorized  agent,  and  signed  by 
the  agent's  clerk,  although  shown  to  have  been  approved  by 
the  agent,  and  according  to  the  usual  course  of  business.  A. 
died,  and  a  bill  was  brought  for  specific  performance  against 
the  remainder-man.  Held,  first,  no  sufficient  agreement  in 
writing,  not  being  signed  by  an  agent  properly  authorized, 
and,  if  it  had  been,  the  memorandum  not  containing  some 
of  the  material  terms  of  a  lease,  which  were  left  to  be  made 
out  by  parol  evidence  ;  secondly,  not  to  be  established  as  a 
parol  agreement  in  part  performed,  both  as  it  was  not  the 
agreement  of  the  principal,  nor  of  the  authorized  agent,  and 

'  Jordan  v.  Sawkins,  3  Bro.  C.  C.  ^  Charlewood  v.  Duke  of  Bedford,  1 
388  ;  1  Ves.  402.  Atk.  497. 

2  Walters  v.  Morgan,  2  Cox,  369.  *  Lowther  v.  Carril,  1  Vern.  221. 

5  Shippey  v,  Denison,  5  Esp.  Ca.  190. 


en.  XVI.]  TITLE   TO    LEASEHOLDS.  285 

also  because  the  remainder-man  had  been  guilty  of  no  fraud, 
upon  which  to  charge  him  with  the  conveyances  of  the  con- 
tract. Also,  that  the  plaintiff  was  not  entitled  to  compen- 
sation from  A.'s  representatives,  for  money  laid  out  by  him 
on  the  faith  of  the  alleged  agreement ;  such  compensation 
being  in  the  natmre  of  damages,  and  the  fault  lying  in  the 
plaintiff's  own  negligence.' 

57.  Bill  to  recover  a  balance  of  purchase-money  against 
two  defendants.  Hendon,  one  of  the  defendants,  contracted 
in  writing  with  the  plaintiff  for  the  purchase  of  a  college 
lease  ;  and  the  plaintiff  agreed  to  renew  the  lease  in  the 
name  of  Hendon,  or  such  person  as  he  should  nominate  and 
appoint.  Hendon  directed  the  plaintiff  to  renew  the  lease 
in  the  name  of  Cox,  the  other  defendant,  and  declared  he 
bought  it  for  him  as  his  agent.  The  plaintiff  brings  the  bill 
against  both  for  the  residue  of  the  purchase-money.  The 
decree  at  the  rolls  was  against  both  defendants,  to  pay  the 
money,  and,  in  case  Hendon  should  pay  it,  that  he  might 
prosecute  the  decree,  in  the  name  of  the  plaintiff,  against 
Cox.  Cox  appeals,  for  that  he  did  not  give  any  authority 
in  writing  to  Hendon  to  buy  the  lease  for  him  as  required 
by  the  Statute  of  Frauds.     Decree  affirmed.^ 

58.  With  regard  to  the  effect  of  part-performance  upon 
the  validity  of  a  parol  agreement;  specific  execution  of  a 
parol  agreement  for  a  lease  for  three  lives,  proved  by  one 
witness,  was  refused ;  the  answer  admitting  an  agreement 
for  one  life  only,  supported  by  the  testimony  of  one  witness, 
and  not  inconsistent  with  the  evidence  of  part-performance 
given  by  the  plaintiff.^  So,  in  case  of  a  bill  for  the  execu- 
tion of  a  parol  agreement  for  a  lease  of  a  house  to  the 
plaintiff,  who,  in  confidence  of  the  agreement,  had  laid  out 
money ;  a  plea  of  the  Statute  of  Frauds  was  allowed.*  But, 
in  case  of  a  bill  for  specific  performance  of  a  parol  agree- 
ment for  a  lease,  charging  possession  taken  and  other  acts  of 

1  Blore  V.  Sutton,  3  Mer.  237.  ^  Lindsay  v.  Lynch,  2  Sch.  &  Lef.  1. 

.     2  Waller  v.  Hendon,   5    Vin.   Abr.        *  HoUis  v.  Whiteing,  1  Veru.  151. 
524. 


286         LAW  OF  VENDORS  AND  PURCHASEllS.     [CH.  XVI. 

part-performance ;  a  plea  of  the  statute,  and  answer,  not 
denying,  tlie  acts  alleged,  but  stating  that  the  defendant, 
being  advised  .that  he  entered  as  tenant  at  will,  gave  notice 
to  quit ;  was  overruled.^  So,  in  case  of  an  agreement  for  a 
lease,  in  part  performed  by  possession  taken,  though  without 
express  assent,  acquiesced  in,  and  expenditure  permitted; 
specific  performance  was  decreed  according  to  the  plaintiff's 
evidence,  against  the  assertion  of  a  right  of  resumption  by 
the  answer,  and  one  witness,  not  proving  that  it  was  ad- 
mitted.^ So,  an  agreement  in  writing  for  a  lease,  not  signed 
by  the  defendant,  was  specifically  executed,  on  the  ground  of 
part-performance,  viz :  possession  taken  and  rent  paid  ac- 
cording to  the  agreement."^  So,  specific  performance  of  a 
parol  agreement  to  grant  a  lease  was  decreed  on  the  testi- 
mony of  one  witness,  confirmed  by  circumstances,  against 
the  denial  in  the  answer,  after  part-performance  by  delivery 
of  possession.*  So,  in  case  of  a  bill  for  specific  performance 
of  a  parol  agreement  to  renew,  the  plaintiff"  having  built  a 
house ;  the  only  witness  for  the  plaintiff"  proved  an  agree- 
ment diff"erent  from  that  in  the  bill ;  and  two  defendants  by 
answer  stated  an  agreement  diff"erent  from  both.  Held,  in 
strictness,  the  bill  ought  to  be  dismissed ;  but  specific  per- 
formance was  decreed  according  to  the  answers,  with  costs 
against  the  plaintiff".^  So,  in  case  of  a  bill  for  specific  per- 
formance of  a  parol  agreement  to  let  lands ;  the  defendant 
had  suff"ered  his  wife  to  receive  money  from  the  plaintiffs,  in 
consideration  of  fines,  (he  being  incapable  of  receiving  fines,) 
and  had  written  a  letter  to  a  third  person,  acknowledging 
the  demise,  and  stating  that  he  was  ready  to  make  leases. 
These  circumstances  were  held  sufficient  to  take  the  case 
out  of  the  Statute  of  Frauds.^  So  a  decree  was  made  for 
specific  performance  of  an  agreement  to  grant  a  lease,  of 
which  only  one  part,  signed  by  the  plaintiff,  was  found  in 

1  Bowers  v.  Oator,  4  Ves.  91.  ^  Mortimer  v.  Orchard,  2  Ves.  243. 

2  Gregory  v.  Mijjhell,  18  Ves.  .328.  ^  Hartly   v.   Wilkinson,  Irish   Term 

3  Kine  w.'Balt'e,'2  Ball  &  Beat.  343.  Rep.  357. 
*  Morphett  v.  Jones,  1  Swanst.  172. 


CH.  XVI.]  TITLE   TO    LEASEHOLDS.  287 

the  possession  of  the  defendant,  upon  the  grounds  of  pos- 
session, drafts  prepared  and  approved,  and  the  execution 
deferred  only  till  repairs  were  completed.  But  an  extension 
of  the  term,  according  to  a  variation  of  the  agreement,  also 
in  writing,  was  refused,  on  the  ground  of  want  of  consid- 
eration.' 

59.  BiU  by  the  tenant  of  a  farm,  for  specific  performance 
of  a  parol  agreement  for  a  new  lease,  stating  improvements 
made  at  a  considerable  expense,  continuance  of  possession 
after  the  expiration  of  the  old  lease,  and  payment  of  an 
increased  rent  under  the  agreement.  Plea  of  the  Statute  of 
Frauds  ordered  to  stand  for  an  answer,  with  liberty  to 
except.^ 

60.  Bill  for  specific  performance  of  a  parol  agreement  to 
grant  a  lease  for  twenty  years,  alleging  acts  in  part  perform- 
ance. Plea  of  the  Statute  of  Frauds  ;  and  answer,  denying 
that  the  acts  were  done  in  part-performance.  The  plea  was 
saved  to  the  hearing,  with  liberty  to  except ;  the  Lord  Chan- 
cellor inclining  to  the  opinion  that,  though  the  agreement  is 
admitted,  the  statute  may  be  used  as  a  defence  to  the  suit.^ 

1  Robson  V.  Collins,  7  Ves.  133.  ^  Moore  v.  Edwards,  4  Ves.  23. 

2  Wills  V.  Stradling,  3  Ves.  378. 


LAW   OF   VENDORS   AND   PURCHASERS.  [CII.  XVII. 


CHAPTER  XVII. 


RESCINDING   OF   SALES. 


1.  General  subject ;  grounds  for  aban- 
doning a  contract. 

10.  Misdisni/ilion  of  tlie  property. 

13.    Com  I  i<n  sat  ion. 

16.  Presumption  of  rescission. 


18.    Waiver. 

20.  Mode  of  rcscindinf^  ;   by  vendor 
or  vendee  ;  form  of  action. 

28.  Interest,  improvements,  &c. 


1.  In  the  foregoing  chapters,  relating  to  the  subject  of  title, 
it  has  been  incidentally  considered,  for  what  defects  of  title 
or  other  variances  from  the  terms  of  the  contract,  the  vendee 
may  refuse  to  complete  the  sale.  In  the  natural  order  of 
topics,  we  proceed  to  treat  of  the  rescinding  of  a  sale  of 
real  property,  generally.  This  will  involve  the  extensive 
subjects  of  fraud,  mistake,  personal  incapacity,  and  other 
legal  or  equitable  grounds  for  avoiding  the  contract.  In  the 
present  chapter,  we  propose  to  consider  more  particularly 
those  causes,  which  are  independent  of  any  deceit  or  mis- 
representation, and  pertain  rather  to  the  condition  of  the 
property  sold.  Reference  will  also  be  made  to  rescission  by 
the  vendor  as  well  as  the  vendee. 

2.  It  may  be  remarked,  that,  if  a  party  to  the  sale  has 
himself  abahdoned  the  contract,  he  cannot  avail  himself  of 
it  in  opposition  to  a  legal  claim,  against  which,  until  aban- 
doned, it  would  have  been  a  good  defence.  Thus,  the  de- 
fendant, being  entitled  to  an  undivided  moiety  of  a  piece  of 
ground,  agreed  with  the  plaintiff,  that,  in  case  either  of  them 
should  purchase  the  other  moiety,  the  whole  should  be 
divided  in  a  particular  manner  between  them.  This  moiety 
was  sold  to  a  third  party,  whereupon  the  plaintiff  and  de- 
fendant further  agreed,  that  neither  of  them  would  purchase 


CH.  XVII.]  RESCINDING   OF   SALES.  289 

it  until  they  had  agreed  upon  a  sum  to  be  given  for  it,  sub- 
ject  to  the  former  agreement.  The  defendant  afterwards 
refused  to  agree  upon  the  price,  and,  the  plaintiff  having 
purchased  the  moiety,  the  defendant  refused  to  carry  the 
agreement  into  effect.  Held,  in  a  suit  for  partition,  the 
defendant  was  bound  to  fix  a  price  ;  also,  that  he  had  aban- 
doned the  contract,  and  could  not  set  it  up  as  a  bar.^ 

3.  One  party  to  a  contract  cannot  abandon  it  as  against 
the  other,  although  the  former  had  no  legal  power  to  make 
the  contract,  and  although  the  collateral  circumstances,  with 
reference  to  which  the  contract  was  made,  have  ceased  to 
exist.  Thus,  a  railway  company  had  a  bill  before  parlia- 
ment for  making  a  railway  from  W.  to  S.,  with  a  line  diverg- 
ing to  N.  One  of  the  objections  to  the  bill  was,  that  the 
diverging  line  would  cross  another  railway  line.  When  the 
bill  was  in  committee,  it  was  ascertained  that  this  objection 
would  be  removed,  if  the  company  were  to  obtain  an  estate 
settled  on  A.  for  life,  with  remainders  over,  which,  however, 
by  their  bill  they  would  not  be  authorized  to  buy.  An  agree- 
ment was  entered  into  between  the  company  and  A.  to 
purchase  this  estate  from  A.,  and  to  perform  all  such  acts  as 
might  enable  A.  to  sell  it.  The  bill  was  passed,  without 
obtaining  any  powers  to  purchase  A.'s  estate,  and  omitting 
the  diverging  line.  The  line  from  W.  to  S.,  and  every  thing 
connected  with  it,  were  afterwards  abandoned  by  the  com- 
pany. In  a  suit  by  A.  against  the  company,  for  specific 
performance  ;  held,  they  were  bound  to  perform.^ 

4.  Nor  can  a  vendor  rescind  the  sale,  upon  the  ground 
that  the  plaintiff  (the  vendee)  has  wrongfully  taken  other 
property,  instead  of  the  property  sold. 

5.  Action  for  not  permitting  the  plaintiff  to  carry  away 
from  the  land  of  the  defendant,  according  to  the  conditions 
of  sale,  certain  trees  purchased  by  the  plaintiff.  Defence, 
that  before  breach  the  plaintiff  fraudulently  felled  and  carried 


1  Morris  v.  Timmins,  1  Beav.  411.  "^  Hawkes  v.  Eastern,  &c.  4  Eng.  Law 

&Eq.  91. 

25 


290  LAW   OF   VENDORS   AND   PURCHASERS.  [CII.  XVH. 

away  from  the  defendant's  lands  other  trees,  not  sold  to  him, 
as  and  for,  and  which  were  fraudulently  pretended  and  repre- 
sented by  the  plaintiff  to  be,  the  trees  which  were  sold,  and 
which  were  equal  to  them  in  value  and  number.  Held,  an 
insufficient  defence,  showing  neither  a  rescission  nor  an 
estoppel.' 

6.  In  an  action  for  money  had  and  received,  to  recover  a 
deposit  for  a  defect  of  title,  the  plaintiff  must  prove  the  title 
bad^  not  merely  that  it  has  been  deemed  insufficient  by  con- 
veyancers employed  to  advise  upon  it.^ 

7.  A  failure  by  the  obligor,  in  a  bond  for  title,  to  perform 
the  condition,  is  no  ground  for  cancelling  the  contract  in 
equity.^ 

8.  Contract  to  sell  and  convey,  upon  payment  of  the  pur- 
chase money,  as  the  respective  instalments  became  due,  and, 
in  case  of  failure  to  pay  any  instalment  when  due,  reserving 
the  power  to  ratify  or  revoke  the  contract  at  pleasure.  The 
vendee  entered  ijpon  and  improved  the  land,  and  paid  part 
of  the  purchase-money,  but  failed  to  pay  the  balance  at  the 
time  stipulated,  and  the  seller  rescinded  the  contract,  and 
conveyed  the  land  to  another.  The  vendee  files  a  bill  in 
equity  to  recover  the  consideration-money,  and  compensation 
for  the  improvements,  without  alleging  fraud  or  insolvency 
in  the  vendor,  and  without  asking  other  relief.  Held,  not  a 
case  within  the  jurisdiction  of  equity.^ 

9.  The  conditions  of  sale  represented  that  a  deed,  under 
which  A.  claimed  an  interest  in  the  estate,  was  a  forgery, 
that  the  vendor  had  made  his  affidavit  to  that  effect,  and, 
therefore,  that  the  purchaser  should  not  take  any  objection 
to  the  title  by  reason  of  that  deed.  The  purchaser  after- 
w^ards  refused  to  complete  the  purchase,  brought  an  action 
for  his  deposit,  and  obtained  a  verdict,  the  jury  declaring  the 
deed  to  be  genuine.  Held,  in  a  bill  by  the  vendor  for  specific 
performance,  that  at  law  the  purchaser  could  not  rescind  on 


1  Lewis  V.  Clifton,  25  Eng.  Law  &        ^  Shoup  v.  Cook,  1  Smith,  29. 
380. 
Camtield  v.  Gilbert,  4  Esp.  Ca.  221. 


Eq.  380.  *  Notson  v.  Barrett,  1  Iowa,  302. 

'2  I 


CII.  XVII.]  RESCINDINfi    OF    SALES.  291 

the  ground  that  the  affidavit  turned  out  to  be  untrue,  and,  in 
equity,  that  the  vendor,  in  case  he  could  make  a  good  title  in 
other  respects,  was  entitled  to  a  decree  for  specific  perform- 
ance, with  costs.-^ 

10.  With  regard  to  misdescription  of0he  land  sold,  as 
ground  for  rescinding  the  sale,  it  has  been  held,  that  a  pur- 
chaser under  a  particular,  giving  a  false  description,  is  not 
bound  at  law  or  in  equity,  nor  by  any  act  of  his  agent,  with- 
out a  fresh  authority  or  subsequent  approbation;  a  diifferent 
agreement  requiring  a  fresh  authority.^  So,  where  conditions 
of  sale  are  so  obscurely  worded,  that,  when  taken  in  connec- 
tion with  the  particular  they  are  likely  to  mislead  an  ordinary 
purchaser  as  to  the  nature  of  the  property  offered,  it  seems 
the  Court  will  discharge  the  purchaser  in  the  argument  of 
exceptions  to  the  title,  without  a  motion  to  be  discharged.^ 
So,  an  injunction  to  stay  proceedings,  in  an  action  brought 
by  a  purchaser  to  recover  the  amount  of  his  deposit,  was 
refused ;  the  description  in  the  printed  particular  of  sale 
being  calculated  grossly  to  deceive  as  to  the  real  nature  and 
value  of  the  estate  sold.*  So,  it  is  held,  that  specific  execu- 
tion will  not  be  enforced,  unless  the  parties  have  described 
and  identified  the  tract,  or  unless  the  contract  furnish  the 
means  of  certainly  identifying  it.^  Thus,  by  the  conditions 
of  sale,  no  further  evidence  of  identity  was  to  be  required, 
than  what  was  afforded  by  the  abstract,  and  the  documents 
therein  abstracted.  The  descriptions  in  the  documents  dif- 
fered amongst  themselves,  and  from  the  descriptions  in  the 
particulars  of  sale.  Held,  that  the  purchaser  was  entitled  to 
have  further  proof  of  the  identity.^  So,  misdescription  of 
the  quantity  of  land,  in  regard  to  the  acres  being  statute 
acres  or  customary^  is  not  matter  of  compensation,  but  a 
ground  for  setting  aside  the  sale.'^ 

1  Cattell  V.  Corrall,  3  Y.  &  Coll.  413.  ^  Reed's  Heirs  v.  Hornback,  4  J.  J. 

2  Deverell  v.  Bolton,  18  Ves.  505.  Marsh.  375. 

3  Taylor  v.  Martindale,  1  Y.  &  Coll.  "  Flower  i'.  Hartopp,  6  Beav.  476. 
658.  "  Price  v.  North,  2  Y.  &  Coll.  620. 

*  Stewart  v.  AUiston,  1  Mer.  20. 


292         LAW  OF  VENDOllS  AND  PURCnASERS.     [CH.  XVn. 

11.  On  the  other  hand,  it  has  been  held,  that  aii^rcements 
for  sale  of  an  estate,  especially  if  by  auction,  depend  on  the 
bona  fides  of  the  transaction ;  therefore  trifling  errors  in  the 
description  are  not  material.     Thus,  the  advertisement  of 
an  estate  descrit^  it  all  as  freehold,  though  a  small  part 
was  hold  at  will.*   After  execution  of  articles,  a  treaty  for 
an  exchange  of  that  part  took  place ;  pending  which,  at  the 
time  appointed  for  completing  the  purchase,  the  purchaser 
took  possession  forcibly,  but  proceeded  in  the  treaty  after- 
wards, till  he  finally  refused  to  agree  to  the  purchase.     On  a 
bill  of  the  vendor,  the  purchase-money  was  decreed  to  be 
paid,  with  four  per  cent,  from  the  time  appointed ;  but  an 
inquiry  was  directed,  as  to  what  ought  to  have  been  the 
compensation  at  that  time  for  the  part  not  freehold ;  that, 
with  the  out-going,  to  be  deducted.^     So  an  injunction  was 
granted,  to  stay  action  against  an  auctioneer  for  the  deposit, 
although  the  estate  was  represented  as  freehold,  with  lease- 
hold adjoining,  and  turned  out  to  be  almost  all  leasehold, 
and  although  there  had  been  great  delay  in  making  out  the 
plaintiff's  title.^     So  specific  performance  of  an  agreement 
for  the  sale  of  an  estate  was  decreed,  notwithstanding  a 
variance    from  the  description,  with  compensation  for  the 
deficiency  in  value ;  though  a  minute  examination  might 
have  discovered  the  defects ;  as  in  the  state  of  the  house  and 
the  cultivation  of  the  lands ;  but  not  for  a  variance  from  the 
description  as  lying  within  a  ring-fence,  this  being  an  object 
of   sense,  and  upon  the  evidence  the  purchaser  being  ap- 
prised of  it.^     So  specific  performance  was  decreed  against 
a  purchaser  at  auction,  .where  the  representation  in  the  par- 
ticulars was  so  vague  and  indefinite,  that  it  ought  to  have 
put  the  purchaser  on  inquiryi*     So  a  purchaser  is  not  enti- 
tled even  to  an  abatement,  for  a  deficiency  in  quantity ;  the 
particular  describing  the  estate,  as  containing  by  estimation 
forty-one  acres,  be  the  same  more  or  less.^     So,  where  lands 

'  Calcraft  v.  Roebuck,  1  Ves.  221.  *  Trower  v.  Newcorae,  3  Meri.  704. 

2  Fordyco  v.  Ford,  4  Bro.  C.  C.  494.  ^  Winch   v.   Winchester,    1    Ves.    & 

^  Dyer  v.  Hargrave,  10  Ves.  506.  Beam.  375. 


CH.  XVII.]  RESCINDING   OF   SALES.  293 

had  been  purchased  under  a  decree  in  a  creditor's  suit,  the 
Court,  on  the  application  of  a  creditor,  who  had  for  four 
years  acquiesced  in  the  purchase,  and  who  was  not  sup- 
ported in  his  objections  by  the  other  creditors,  refused  to  set 
aside  the  purchase  on  the  ground  of  misdescription  of  the 
land  in  the  particulars.^  So  it  has  been  held,  that  the  gen- 
erality and  vagueness  of  descriptions  of  copyhold  property 
on  the  court  rolls  are  so  well  known,  that  a  vendor  is  not 
bound  to  show  how  such  description  is  to  be  applied  to  the 
present  state  of  the  property,  if  he  prove  that  the  property 
has  actually  been  enjoyed  and  passed  under  that  description 
for  upwards  of  sixty  years.^ 

12.  And  even  where  a  judgment  has  been  recovered  at 
law  by  the  vendee,  upon  the  ground  of  misdescription  in  the 
deed,  as  compared  with  the  conti'act ;  equity  will  sometimes 
interfere  for  relief.  Thus  a  bill  was  brought  to  be  relieved 
against  a  verdict  and  judgment  in  ejectment  for  a  farm, 
which  the  purchaser  of  the  manor  would  have  to  be  com- 
prehended under  general  words  in  the  deed,  but  which  w^ere 
never  mentioned  in  the  particular  given  before  the  purchase 
was  made,  but  enjoyed  by  the  vendor  several  years  after  the 
sale  of  the  manor.     The  plaintiff  was  relieved.^ 

13.  "^e  have  already  considered  (chapters  13, 16,)  the  right 
of  a  purchaser  to  receive  compensation  in  equity,  for  any  de- 
ficiency in  the  land  sold.  It  may  be  added,  in  the  present 
connection,  that  no  compensation  will  be  allowed  in  a  case 
of  great  intentional  misrepresentation,  although  so  provided 
by  the  conditions  of  sale,  in  case  of  "  any  error  or  misstate- 
ment" in  the  particulars.^  So,  in  the  analogous  case,  where  a 
party  obtains  an  agreement  by  a  partial  misrepresentation,  he 
is  not  entitled  to  a.  specific  performance,  on  waiving  the  part 
affected  by  the  misrepresentation  ;  the  efTect  of  such  misrep- 
resentation being,  not  to  alter  or  modify  the  agreement,  but 
to  destroy  it  entirely,  and  to  operate  as  a  personal  bar  to  the 

'  Price  V.  North,  2  Y.  &  Coll.  220.  ^  Tyler  v.  Beversham,  Rep.   Temp. 

2  Long  V.  Collier,  4  Russ.  267.  Finch,  80. 

*  Stewart  v.  AUiston,  1  Mer.  26. 
25* 


294  LAW   OP   VENDORS  AND   PURCHASERS.  [ciI.  XVII. 

party  who  has  practised  it.^  So  a  condition  in  articles  of 
sale,  "  that  any  error  in  the  particulars  shall  not  vitiate  the 
sale,  but  a  compensation  shall  be  made,"  only  ai)plics  to 
cases,  where  the  circumstances  aflbrd  a  principle  by  which 
this  compensation  can  be  estimated.  Therefore,  on  the  sale 
of  a  reversion,  expectant  on  the  death  of  A.  B.  wit hoid  chil- 
dren, an  error  in  the  statement  of  A.  B.'s  age  docs  not  come 
within  the  condition,  (as  it  would,  if  the  reversion  were  sim- 
ply expectant  on  A.  B.'s  death,)  because  it  affects  the  prob- 
ability of  the  other  contingency,  which  is  not  a  subject  of 
calculation.  Hence  the  purchaser  is  entitled  to  rescind.^  So 
a  condition,  "  that  if  any  mistake  shall  be  made  in  the  de- 
scription, or  any  other  error  in  the  particulars  of  the  property, 
such  mistake  or  error  shall  not  annul  the  sale,  but  a  compen- 
sation shall  be  given,  &c.,"  does  not  apply,  where  any  sub- 
stantial part  of  the  property  turns  out  to  have  no  existence, 
or  cannot  be  found  ;  or  where  the  vendor  has  maid  Jide  given 
a  very  exaggerated  description  of  the  property.  The  pur- 
chaser may  in  such  a  case  rescind  the  contract  in  toto? 

14.  The  particulars  of  a  sale  at  auction  described  tAv o  houses 
as  Nos.  3  and  4,  and  stated,  that  the  taxes  of  No.  3  were 
paid  by  the  tenant.  The  houses  were  really  Nos.  2  and  3, 
though  the  names  of  the  occupiers  were  correct ;  |Lnd  the 
taxes  of  No.  3  were  farmed  by  the  landlord.  The  houses 
Nos.  2  and  4  were  of  the  same  rate  ;  but  No.  4  was  in  the 
best  state  of  repair.  Held,  these  misdescriptions  were  not 
cured  by  a  condition,  that,  if  any  error  or  misstatement  should 
be  found  in  the  particular,  it  should  not  vitiate  the  sale.* 

15.  On  a  sale  under  a  decree,  the  abstract  stated,  that  the 
vendor  was  devisee  of  A.,  who  took  as  heir  to  B.,  and,  on 
inquiry,  the  vendor's  solicitor  confirmed  that  statement ;  and 
the  master  accordingly  approved  of  the  title.  Just  before  the 
conveyance  was  executed,  the  purchaser  discovered  that  C. 


1  Clermont   v.   Tasburgh,   1   Jac.   &  ^  Robinson  v.  Musgrove,  2  Moody  & 
Walk.  112.  Robinson,  92. 

2  Sherwood  v.  Robins,  Moody  &  Malk.  *  Leach  v.  MuUett,  3  Car.  &  P,  ift. 
194. 


CH.  xvil]  rescinding  of  sales.  295 

was  the  heir  of  B.,  and  it  appeared  that  the  solicitor  had  re- 
ceived information  of  that  fact,  but  concealed  it.  A  motion 
by  the  purchaser,  to  be  discharged  from  his  purchase,  was 
granted,  though  the  vendor  had  obtained  a  release  from  C. 
before  the  motion  was  made.^  So  the  defendant,  on  the  31st 
of  March,  agreed  to  grant  to  the  plaintiff  a  lease,  habendum 
from  the  29th  of  September  next,  for  twenty-one  years,  in 
consideration  of  ^1,000,  of  which  XIO  was  paid  down,  £90 
was  to  be  paid  on  the  13th  of  April,  and  the  residue  on  hav- 
ing possession.  The  plaintiff,  being  called  upon  to  pay  the 
,£90,  demanded  ,an  abstract  of  title,  which  was  refused  ; 
whereupon  he  gave  notice  that  he  would  rescind  the  con- 
tract, and  commenced  an  action  to  recover  the  £10.  It 
appeared  that,  when  the  action  was  commenced,  the  defend- 
ant had  no  power  to  grant  the  lease  contracted  for.  Judg- 
ment for  plaintiff.^ 

16.  But,  as  has  been  already  seen,  (Chap.  13,)  the  chan- 
•cellor  will  not  always  rescind  a  contract,  because  the  vendor 
has  not  a  title  to  the  whole  of  the  land,  but  will  decree  to  the 
vendee  compensation  pro  tanto?  {a)  Thus,  where  a  sale  at 
auction  is  bond  fide,  the  title  good,  the  quantity  of  land  the 
same,  and  the  description  substantially  true,  though  slightly 

1  Dalby  v.  Pullen,  3  Sim.  29.  ^  Collard  v.  Groom,  2  J.  J.  Marsh. 

'^  lioper  V.  Coombes,  6  Barn.  &  Cress.     488  ;  Reynolds  v.  Vance,  4  Bibb,  215. 
534. 

(a)  The  cases  upon  this  subject,  however,  are  not  uniform,  but  vary  with 
the  particular  circumstances  and  equities  of  each.  Thus  it  has  been  held, 
that  equity  will  not  compel  specific  performance,  unless  the  vendor  tan 
make  a  good  title  to  all  the  land  sold.  Hepburn  v.  Auld,  5  Crauch,  278. 
So  it  is  held,  that  a  party  applying  for  specific  execution  of  a  land  contract 
will  not  be  compelled  to  take  lost  land  ;  but,  if  part  of  the  land  described  be 
lost,  he  has  the  election,  to  take  the  safe  part,  and  go  for  damages  as  to  the 
other,  or  he  may  refuse  the  land  saved,  and  go  for  damages  for  the  whole. 
Rankiil  v.  Maxwell,  2  A.  K.  Marsh.  494.  So,  where  there  was  an  out-' 
standing  title  to  five  hundred  and  seventy  acres  of  the  land  purchased,  the 
owners  of  which  obtained  possession  after  the  purchase ;  held,  equity  would 
decree  a  rescission  of  the  contract,  after  judgment  on  tjie  notes  given  to  secure 
the  purchase-money.    Parham  v.  Randolph,  4  How.  (Miss.)  435. 


# 


296  LAW   OP  VENDORS  AND   PURCHASERS.  [cil.  XVH. 

defective  or  variant,  specific  performance  will  be  decreed.  As 
where  two  adjoining  lots  were  sold  together,  in  one  parcel,  for 
one  price,  and  on  one  of  them  were  buildings,  which  projected 
two  feet  on  the  other.  Held,  this  was  not  so  material  a  defect 
in  the  subject,  or  variation  from  the  description  at  the  sale,  as 
would  entitle  the  purchaser  to  abandon  the  contract.  But, 
as  the  projection  was  not  so  obviously  visible  as  to  conclude 
the  purchaser,  if  he  had  exercised  ordinary  vigilance  ;  and  as 
the  advertisement  described  the  buildings  as  being  on  one  of 
the  lots  ;  the  purchaser  was  entitled  to  compensation,  to  be  de- 
■  ducted  from  the  price.^  So,  a  bond  being  given,  to  make  title 
to  a  particular  tract  of  land,  which  should  contain  a  certain 
number  of  acres,  but  not  to  convey  any  other  specific  lands  to 
make  good  a  deficiency  ;  the  only  remedy  for  such  deficiency, 
is  a  proportional  compensation  in  money  according  to  the 
price  agreed  on  for  the  whole  tract,  with  interest.  And,  where 
a  plaintiff"  sues  in  chancery,  for  conveyance  of  a  specific  tract, 
and  also  of  other  lands,  to  make  up  a  deficiency  of  quantity,  • 
(relating  to  which  deficiency  he  prays  a  discovery,)  but,  ac- 
cording to  the  contract,  appears  entitled  to  compensation  in 
money,  and  not  in  lands ;  the  Court,  after  decreeing  the  first- 
mentioned  conveyance,  (the  deficiency,  and  the  sum  to  be 
allowed  for  it,  being  ascertained,)  will  go  on  to  decree  the 
compensation.^  So  want  of  title  to  fifty  acres,  part  of  a  tract 
of  eight  hundred  and  odd  acres,  not  appearing  to  be  impor- 
tant to  the  purchaser,  is  no  ground  for  a  rescission,  but  for 
compensation.^  So  the  sale,  by  auction,  of  a  lot  described  as 
a  certain  and  limited  body  of  a  given  extent,  cannot  be 
rescinded,  for  a  deficiency  in  measure  of  less  than  one  twen- 
tieth of  the  whole.^  So  a  trustee,  appointed  by  the  court  of 
chancery,  sold  an  entire  tract  of  land,  at  a  certain  price  per 
acre,  and  the  sale  was  ratified.  At  the  time  of  sale,  it  was 
•known  to  the  trustee  and  the  purchaser,  that  a  bill  was  pend- 
ing for  the  recovery  of  an  interest  in  such  land,  in  opposition 

1  King  V.  Bardeau,  6  Johns.  Ch.  38.  ^  Buck  v.  M'Caughtry,  5  Monr.  230. 

2  Chinn  v.  Heale,  1  Munf.  63.  *  Soule  v.  Heerman,  5  Miller,  (Louis.^ 

358. 


en.  XVII.]  RESCINDING   OF   SALES.  297 

to  the  cestuis  que  trust.  On  that  bill,  it  was  finally  decreed, 
that  the  complainants  were  entitled  to  one  fourth  of  the  prop- 
erty. After  this  decision,  the  purchaser  filed  a  petition  in 
Chancery,  setting  it  forth,  and  claiming  to  vacate  the  sale, 
on  the  ground  that  he  was  induced  to  make  the  purchase, 
because  of  its  proximity  to  his  own  estate,  and  an  important 
road,  leading  from  his  estate  through  the  purchased  premises, 
and  connecting  them  together.  But,  the  existence  of  the  road 
not  being  proved,  the  sale  being  made  in  perfect  good  faith, 
and  it  appearing  that  the  quantity  of  land  to  be  obtained 
from  the  trustee  was  not  a  material  consideration  in  the  pur- 
chase ;  that  the  trustee  could  make  a  good  title  under  the 
decree  to  three  fourths  of  the  land ;  that  the  petitioner  had 
secured  to  himself  three  fourths  of  the  remaining  fourth  part ; 
and  that  the  trustee  was  placed  in  a  situation,  by  a  deed 
from  the  party  having  the  right,  to  give  a  title  to  the  other 
fourth  of  that  part,  which,  if  the  petitioner  chose  to  accept  it, 
would  secure  to  him  the  entire  object  of  the  purchase,  with- 
out loss ;  held,  that  he  could  not  be  discharged  from  his 
contract,  when  the  enforcement  of  it,  subject  to  a  proportion- 
ate deduction  for  that  which  he  had  purchased  from  others, 
would  do  him  no  injury .^  And  in  general  it  may  be  stated, 
that,  on  a  bill  for  specific  performance,  if  the  vendor  be  not 
able  to  make  a  conveyance  of  the  entire  estate  sold,  the  pur- 
chaser may  insist  for  the  specific  thing,  so  far  as  the  right  of 
the  vendor  extends,  and  compensation  out  of  the  purchase- 
money  for  any  embarrassment  of  the  title,  or  deficiency  in 
the  number  of  acres  sold ;  ^  that,  although  a  purchase  of  lands 
cannot  be  dissolved  in  part  and  affirmed  in  part ;  yet,  if  part 
of  the  land  is  lost,  the  vendee  may  coerce  a  title  for  the  part 
saved,  and  compensation  for  the  part  lost ;  ^  and  that,  where 
a  sale  has  been  in  part  executed  by  a  conveyance  of  part  of 
the  land,  and  the  vendor  is  unable  to  convey  the  residue, 


1  Weems  v.  Brewer,  2  Harr.  &  Gill,     64  ;  Westervelt  v.  Matheson,  1  Hoffm. 
390.  Ch.  37. 

2  McKay  v.  Carrington,  1  McLean,        ^  g^gp  v,  Alkire,  2  A.  K.  Marsh.  259. 


298  LAW   OF  VENDORS   AND   PURCHASERS.  [CH.  XVII. 

equity  will  decree  repayment  of  a  proportionate  part  of  the 
purchase-money  with  interest.' 

17.  Rescission  of  the  contract  may  be  presumed  or  im- 
plied ;  as,  for  instance,  from  lapse  of  time.  Thus  an  action 
was  brought  on  a  written  agreement,  reciting  that,  whereas 
the  defendant  had  sold  to  the  plaintiff  a  lot  of  land,  who  had 
agreed  to  pay  him  X300  by  a  certain  day,  and  to  execute  a 
bond  and  mortgage  to  secm-e  the  payment ;  the  defendant 
therefore  promised  and  agreed  to  deliver  a  good  and  sufficient 
deed  for  the  land,  on  delivery  of  the  bond  and  mortgage. 
Held,  being  a  mutual  agreement,  there  was  a  valid  consid- 
eration; and,  being  signed  by  the  party  to  be  charged,  it 
was  sufficient  under  the  Statute  of  Frauds :  but,  four  years 
having  elapsed  from  the  date  of  the  agreement,  before  the 
plaintiff  gave  notice  to  the  defendant  that  he  should  insist 
on  the  agreement,  and  five  years  before  he  tendered  a  per- 
formance on  his  part;  it  was  presumed  that  the  parties  had 
rescinded  the  contract,  although  the  defendant  had,  within  a 
year  after  the  contract,  sold  and  conveyed  the  land,  so  as  to 
incapacitate  himself  to  perform  his  agreement.^  So  the 
defendant  gave  the  plaintiff  a  note,  payable  on  time,  with 
interest  annually,  the  plaintiff  agreeing  in  writing,  upon  pay- 
ment at  maturity,  to  convey  certain  premises  to  the  defend- 
ant. The  defendant  took  possession  under  a  lease,  agreeing 
to  pgiy  a  certain  rent,  if  the  note  were  not  paid  at  maturity, 
and  remained  in  possession.  The  note  was  not  thus  paid. 
The  plaintiff  resumed  possession,  but  the  defendant  con- 
tinued to  occupy  under  a  lease.  Held,  this  was  a  disaffirm- 
ance of  the  contract  by  the  plaintiff,  and  equivalent  to 
payment  of  the  note ;  upon  which  no  suit  would  afterwards 
lie.3 

•  18.  The  right  to  rescind  may  be  waived.  Thus,  a  con- 
dition of  sale  was,  that,  in  case  the  purchaser  should  raise 
objections  to  the  title,  which  the  vendor  should  not  be  able 

1  Pratt  V.  Law,  9  Cranch,  458.  *  Porter  v.  Vaughn,  26  Verm.  624. 

2  Ballard  v.  Walker,  3  Johns.  Cas,  64. 


CH.  XVII.]  RESCINDIJfG   OF   SALES.  299 

or  -urilling  to  remove,  the  vendor  might  rescind  the  contract, 
on  notice  and  repayment  of  the  deposit  to  the  purchaser; 
objections  not  delivered  within  fourteen  days  after  the  de- 
livery of  the  abstract  to  be  treated  as  waived,  in  which 
respect  time  was  to  be  essential.  The*  purchaser  returned 
the  abstract  with  queries  within  the  fourteen  days,  and  the 
vendor  answered  the  queries  ;  the  purchaser  on  the  same 
day  objected  to  the  answers ;  the  correspondence  on  the 
subject  of  the  title  continued  for  several  weeks,  and  then  the 
vendor  gave  notice  that  he  rescinded  the  contract.  Held, 
the  continuance  of  the  treaty  after  the  first  objection  was  a 
waiver  of  the  condition ;  more  especially  as  such  a  condition 
ought  to  be  discouraged,  and  not  to  receive  a  construction 
oppressive  on  the  purchaser ;  that  the  vendor's  right  to  re- 
scind must  be  coextensive  with  the  purchaser's  right  to  object 
to  the  title.i  So  if  a  purchaser,  after  delivery  of  the  abstract, 
which  shows  part  of  the  estate  to  be  subject  to  a  right  of 
sporting  not  mentioned  in  the  particulars,  enters  into  posses- 
sion, he  waives  that  objection ;  and  a  subsequent  offer  of 
compensation,  made  by  a  clerk  of  the  vendor's  solicitor, 
without  express  authority,  is  of  no  effect.^  So  if  a  purchaser 
pay  part  of  the  purchase-money,  and  occupy  some  time 
under  the  contract,  he  cannot,  on  the  vendor's  breach  of  his 
agreement  to  convey,  rescind  the  contract,  and  recover  back 
the  money  in  indebitatus  assumpsit ;  his  only  remedy  is  on 
the  special  contract.^  So  a  condition  of  sale  provided,  that, 
if  the  purchaser  should  raise  objections  to  the  title,  which 
the  vendor  should  not  be  able  or  willing  to  remove,  the  ven- 
dor might  rescind,  and  that  all  objections  not  taken  in  writ- 
ing, within  ten  days  after  delivery  of  the  abstract,  should  be 
considered  as  waived.  Held,  the  condition  referred  to  the 
first  delivery  of  objections,  and,  if  the  vendor  expressed  his 
willingness  to  answer  them,  he  could  never  afterwards  re- 
scind.^ 

1  Morley  v.  Cook,  2  Hare,  106.  ^  Barickman  u.  Kuykendall,  6  Blackf. 

■^  Burncll  v.  Brown,  1  Jac.  &  W.  168.        21. 

*  Tanner  v.  Smith,  10  Sim.  410. 


300  LAW   OF   VENDORS   AND   PURCEASERS.  [CII.  XVH. 

19.  The  right  to  rescind  a  written  agreement  may  not 
apply  to  a  subsequent  parol  agreement,  by  which  the  former 
has  been  ivaived.  Thus,  an  agreement  was  entered  into  by 
A.,  for  the  sale  of  an  estate  to  B.,  to  be  completed,  and  the 
purchase-money  paid,  on  or  before  the  expiration  of  five 
years ;  in  the  mean  time,  interest'  to  be  paid  half-yearly  y 
the  vendor  reserving  a  right  to  avoid  the  contract,  if  the 
interest  should  be  in  arrear  for  twenty-one  days.  To  enable 
B.  to  pay  the  interest,  then  in  arrear,  C.  advanced  a  sum  of 
money,  on  mortgage  of  B.'s  interest,  and  A.  afterwards 
verbally  agreed  with  C.  to  extend  the  term  for  the  payment 
of  the  half-yearly  interest.  The  interest  became  afterwards 
in  arrear,  in  such  a  way  that  A.,  by  the  original  agreement, 
had  a  right  to  annul  the  contract,  but  he  had  no  such  right 
under  the  varied  agreement.  A.  reentered  as  for  a  forfeiture. 
The  Court,  on  the  application  of  C,  appointed  a  receiver 
over  the  property.^ 

.  20.  To  obtain  a  rescission,  it  is  not  necessary  to  pay  the 
whole  of  the  purchase-money.  Thus,  where  negotiable  notes 
have  been  given,  and  are  outstanding,  Chancery  will  inter- 
pose.2 

21.  Purchase  of  land  in  Ohio,  from  a  vendor  in  Virginia, 
to  "be  paid  for  by  instalments.  On  the  failure  of  any  of  the 
payments,  the  vendor,  by  giving  notice,  and  paying  into  the 
Bank  of  Virginia,  his  heirs,  executors,  or  administrators,  to 
have  a  right  to  annul  the  contract.  Held,  the  contract,  ex- 
cept by  consent,  could  be  annulled  in  no  other  manner.^ 

22.  By  conditions  of  sale,  all  objections  to  the  title  were 
to  be  taken  away  within  twenty-eight  days  from  the  delivery 
of  the  abstract,  and,  if  not  removed  within  fourteen  days, 
the  vendor  might  annul  the  contract  on  payment  of  the 
deposit,  but  without  costs.  The  purchaser  having  made  a 
valid  objection,  which  was  not  removed,  the  vendor  gave 
notice  to  annul  the  contract.     Held,  the  vendor  might  avail 

1  Dawson  u.  Yates,  1  Beav.  301.  ^  McKay  v.  Carrington,  1  McL.  50. 

3  Ibid. 


CH.  XYII.]  RESCINDING   OF   SALES.  301 

himself  of  the  condition ;  otherwise  if,  in  giving  the  notice, 
he  had  sought  improperly  to  escape  from  the  performance  of 
a  duty,  which,  by  the  nature  of  the  contract,  he  was  bound 
to  perform^ 

23.  A  proviso  that,  in  case  the  vendor  cannot  produce  a 
title,  or  the  purchaser  shall  not  pay  the  money,  on  the  ap- 
pointed day,  the  agreement  shall  be  utterly  void,  gives  an 
option  to  the  vendor  to  rescind  the  sale,  in  case  the  vendee 
does  not  pay  the  money,  and  to  the  purchaser  to  rescind,  in 
case  the  vendor  does  not  make  a  title  ;  but  not  vice  versa? 

24.  It  is  the  prevailing  doctrine,  that,  if  the  purchaser  has 
paid  any  part  of  the  purchase-money,  and  the  seller  refuses 
to  complete  the  contract,  the  purchaser  may  elect  either  to 
affirm  the  contract,  by  bringing  an  action  for  its  non-per- 
formance, or  disaffirm  it  by  an  action  for  money  had  and 
received.  The  latter  remedy  lies,  if  there  be  a  defect  in  the 
title  which  the  vendor  fraudulently  suppresses,  and  receives 
a  part  of  the  purchase-money.^  (a) 

25.  In  an  action  for  the  general  breach  of  an  agreement 
respecting  the  purchase  of  a  house,  the  declaration  need  not 
state  a  collateral  representation  made  at  the  time  of  sale,  as 
that  the  house  was  in  repair,  &c.* 

26.  Where  a  contract  is  entered  into  for  the  purchase  of 
an  estate,  by  certain  persons  in  their  own  names,  but  in  fact 
on  their  own  account,  and  also  as  agents  for  others,  a  bill  to 
rescind  the  contract  may  be  filed  in  the  names  of  all  the 
parties.^ 

27.  Where  partners  are  numerous,  a  bill  may  be  filed  by 

1  Page  V.  Adam,  4  Beav.  269.  *  Thomson    v.   Miles,    1    Esp.    Ca. 

2  Roberts  ;;.  Wyatt,  2  Taunt.  268.  184. 

8  Lyon   V.   Annable,  4    Conn.   350 ;        ^  Small  v.  Attwood,  You.  407. 
Putnam  v.  Westcott,  19  Johns.  73. 

(a)  Contrary  to  this  rule,  it  has  been  held  in  New  York,  that  where,  on 
a  contract  to  pay  for  and  receive  a  conveyance  of  land,  the  money  has 
been  paid,  but  no  conveyance  given,  the  vendee  cannot  rescind,  and  sue  for 
the  purchase-money  and  interest,  but  must  bring  his  action  on  the  contract 
as  still  subsisting.  Fuller  v.  Hubbard,  6  Cowen,  13. 
26 


302  LAW   OF   VENDORS   AND   PURCHASERS.  [CH.  XVII. 

some  of  them  on  behalf  of  themselves  and  the  others  to 
rescind  the  contract,  if  manifestly  for  the  benefit  of  all.' 

28.  With  regard  to  the  respective  rights  of  the  parties 
after  a  sale  has  been  rescinded,  if  the  vendee  has  had  pos- 
session, he  must  accomit  for  the  profits  exceeding  the  im- 
provements.'^ He  has  a  lien  on  the  land  for  his  purchase- 
money  and  interest,  and  the  value  of  the  improvements,  and 
is  liable  to  rents,  &c. ;  but  both  interest  and  rents  should  run 
only  from  the  date  of  the  prayer  to  dissolve  the  contract.^ 
So,  when  a  sale  of  land  which  the  purchaser  has  paid  for, 
and  was  put  in  possession  of,  is  rescinded,  for  causes  free  of 
firaud ;  the  use  of  the  money,  and  the  use  of  the  land,  are 
held  to  balance  each  other ;  and  the  decree  should,  in  gen- 
eral, restore  the  money  to  the  purchaser  without  interest,  the 
land  to  the  vendor  without  rents  or  profits.  But,  if  the  pur- 
chaser has  made  valuable  and  lasting  improvements,  or  if 
the  land  has  suffered  in  his  hands  through  neglect  or  mis- 
management; these  are  subjects  of  valuation,  account,  and 
final  settlement  by  the  decree.* 

29.  But  it  has  been  held  that  the  vendee  cannot  maintain 
a  distinct  action  at  law  for  the  improvements.  Thus,  the 
plaintift's  intestate  entered  into  a  parol  agreement,  in  1803, 
with  the  defendant,  for  the  purchase  of  100  acres  of  land ; 
took  possession,  paid  part  of  the  purchase-money,  cleared 
part  of  the  land,  made  improvements,  and  died  in  1807. 
The  plaintiff",  his  administrator,  tendered  the  residue  of  the 
purchase-money,  and  demanded  a  deed ;  but  the  defendant 
refused  to  receive  the  money  or  execute  a  deed,  and  took 
possession  of  the  land.  The  plaintiff"  then  brings  assumpsit 
for  the  money  paid,  and  also  for  the  work  and  labor  per- 
formed and  improvements  made  on  the  land  by  the  intestate. 
Held,  the  contract  was  rescinded,  and  the  plaintiff"  was  en- 
titled to  recover  back  the  money,  but  not  for  the  labor  or 
improvements.^ 

'  Small  V.  Atwood,  You.  407  ;  3  Y.        «  Griffith  v.  Depew,  3  A.  K.  Marsh. 

&  Coll.  105.  180. 

2  Bullock  V.  Beemiss,  1  A.  K.  Marsh.        *  Williams  v.  Eogers,  2  Dana,  375. 
434.  6  Giiiett  V.  Mayuard,  5  Johns.  85. 


CH.  XVIII.]  MISTAKE.  303 


CHAPTER    XVIII. 


GROUNDS   FOR  AVOIDING   A    SALE. MISTAKE. 


1.  General  remarks.  i      16.  Title  to  part  of  the  property  sold  ; 

3.  Mistake,  v/hat.  when  sufficient. 

4.  Ignorance  or  mistake  of  law  and  |      17.  Compensation. 


fact. 

8.  Equitable  relief  in  case  of  mistake ; 
mode  and  extent  of. 

1 0.  Compensation  or  reschidinfj  in  case 
of  mistake ;  quantity  of  'land  sold  and 
conveyed ;  sale  in  gross,  or  by  bound- 
aries ;  more  or  less,  &c. 


22.  Rescission  of  the  sale. 
25.  Rightfe  of  the  vendor  in  case  of 
mistake. 

30.    Waiver. 

33.  Reforming  of  agreements. 

40.  Parol  evidence. 


1.  Having  in  the  foregoing  chapters  considered  the  sub- 
jects of  title  to  the  property  sold,  and  of  the  right  to  rescind 
the  sale  for  want  of  title ;  we  now  proceed  to  a  general 
statement  of  the  grounds,  upon  which  a  sale  of  real  property 
may  be  avoided,  whether  connected  with,  or  wholly  inde- 
pendent of,  the  question  of  title.  The  subject  is,  of  course, 
an  extensive  one,  and  involves  many  subordinate  topics, 
some  of  which  have  little  in  common,  except  that  they  alike 
constitute  causes,  which  render  a  sale  wholly  or  partially 
void  or  voidable. 

2.  The  failure  of  title,  in  whole  or  in  part,  which  has 
ah'eady  been  considered  with  reference  to  its  bearing  upon 
the  contract,  is  to  be  understood  as  unaccompanied  with 
deceit,  fraud,  or  intentional  misrepresentation.  In  the  mI^w 
now  to  be  taken,  these  will  be  found  essential  elements  of 
the  defective  title ;  consisting  either  in  positive  falsehood, 
negative  concealment,  or  that  kind  of  implied  fraud  which 
grows  out  of  the  personal  incapacity  of  a  contracting  party. 
There  is,  however,  one  among  this  class  of  causes  for  avoid- 
ing the  contract,  which  is  more  nearly  connected  than  the 
others  with  simple  defects  of  ^tle ;    and  therefore,  in  the 


304  LAW   OF   VENDORS   AND   PURCnASERS.        [cn.  XVIH. 

natural  succession  of  subjects,  should  be  first  of  all  consid- 
ered. We  refer  to  mistake.  In  the  absence  of  fraud,  this  of 
course  is  the  only  remaining  explanation  of  want  of  title, 
and  it  has  therefore  been  already  incidentally  considered  in 
the  foregoing  chapters.  It  was  also  briefly  adverted  to  in 
the  introductory  chapter  upon  the  distinction  between  exe- 
cuted and  executory  contracts,  (Chap.  1,  s.  40.)  But  as  a 
distinct  ground  for  avoiding  or  varying  the  contract,  resisting 
specific  performance,  or  claiming  compensation  in  damages, 
it  now  remains  to  be  fully  considered.  It  will  at  once  be 
seen  that,  with  reference  to  this  particular  topic,  it  becomes 
necessary  to  depart  *from  the  prevailing  plan  of  the  present 
work,  and  to  speak  of  executed  conveyances  of  real  property, 
no  less  than  of  executory  contracts  to  convey  it ;  because 
the  most  frequent  class  of  mistakes  consists  in  a  variance 
between  the  property  conveyed  and  that  contracted  for ;  and 
the  reforming  of  deeds  is  one  of  the  most  common  exercises 
of  the  powers  of  a  Court  of  Equity  in  relation  to  this  ex- 
tensive subject. 

3.  Mistake  is  defined,  as  "  an  error  committed  in  relation 
to  some  matter  of  fact  affecting  the  rights  of  one  of  the 
parties  to  a  contract.^  It  is  also  said,  "  mistakes  in  making 
a  contract  are  distinguished  ordinarily  into,  first,  mistakes  as 
to  the  motive ;  secondly,  mistakes  as  to  the  person  with 
whom  the  contract  is  made  ;  thirdly,  as  to  the  subject-matter 
of  the  contract ;  and  lastly,  mistakes  of  fact  and  of  law."  ^ 

4.  Ignorance  of  title^  or,  which  amounts  to  the  same  thing, 
mistake  of  title,  {a)  is  said  to  be  partly  of  law  and  partly  of 

^,  1  2  Bouv.  L.  D.  178.  2  i^id. 

(o)  As  to  the  distinction  between  these  terms,  see  Story  on  Equity,  §  140, 
n.  2  ;  Champlin  v.  Laytin,  18  Wend.  407.  Surprise  is  also  a  term  of  sim- 
ilar import.  Thus  it  is  held,  that  a  party  shall  not  be  entitled  to  specific 
performance,  in  case  of  any  SM?7)me,Tnaking  it  not  fair  and  honest  to  call 
for  it,  but  will  be  left  to  law.  Mortlock  v.  Buller,  10  Ves.  292.  So  a  lease, 
with  covenant  for  perpetual  renewal  at  a  fixed  rent,  of  premises  held  under 
a  church  lease,  renewable  upon  fines,  which  were  continually  increasing, 


GH.  XVIII.]  MISTAKE.  305 

fact}  (a)  Viewed,  respectively,  in  these  different  aspects,  it 
has  been  in  some  cases  held  a  sufficient,  and  in  others  an  in- 
sufficient ground  for  avoiding  a  sale  or  purchase  of  real  prop- 
erty. The  prevailing  doctrine  of  our  law  is,  that  ignorance 
of  law  can  never  be  set  up  as  a  ground  of  action  or  defence, 
"  ignorantia  legis  neminem  exciisatP  (b)  Hence,  a  mistake, 
as  to  the  rights  growing  out  of  a  known  state  of  facts,  is 
not,  in  general,  sufficient  to  avoid  a  contract,  in  which  those 
rights  are  involved ;  while  a  mistake  as  to  the  facts  them- 

1  1  Story  Eq.  132,  §  120. 


was  decreed  to  be  delivered  up  on  the  grouud  of  surprise,  neither  party 
understanding  the  effect  of  it.     Willan  v.  Willan,  16  Ves.  72. 

(«)  The  question  of  heirship,  for  instance,  has  been  held  to  partake  of 
both  elements.     Story,  §  122,  n. 

(b)  In  Lansdowne  r.  Lansdowne,  Mosel.  364  ;  2  Jac.  &  W.  205 ;  Lord 
King  remarked,  that  this  maxim  applies  only  to  crimes,  not  in  civil  cases. 
The  facts  of  that  case  were  these :  The  plaintiff,  who  was  heir  at  law  and 
son  of  the  eldest  brother,  had  a  controversy  with  his  uncle,  the  youngest 
brother,  as  to  the  question  which  was  heir  to  another  deceased  brother  of  his 
uncle.  They  consulted  a  neighboring  schoolmaster,  who,  upon  examining  the 
Clerk's  Remembrancer,  gave  his  opinion  in  favor  of  the  uncle,  because  lands 
could  not  ascend ;  upon  which  the  parties  agreed  to  divide  the  lands,  and 
accordingly  executed,  first  a  bond  and  then  a  conveyance.  The  plaintiff 
brings  a  bill  for  relief  from  these  instruments,  alleging  that  he  had  been 
surprised  and  imposed  upon  by  the  schoolmaster  and  his  uncle.  The  uncle 
being  dead,  his  son  and  the  schoolmaster  were  made  defendants ;  and  the 
latter  admitted  in  his  answer,  that  he  had  given  the  opinion,  being  misled  by 
the  book,  and  that  he  had  recommended  to  the  parties  to  take  further  advice; 
but  that  the  plaintiff  had  afterwards  told  him,  that,  if  his  uncle  would,  he 
would  agree  to  share  the  land  between  them,  let  it  be  whose  right  it  would, 
and  thereby  prevent  all  disputes  and  lawsuits.  Upon  which  the  schoolmaster 
prepared  the  papers,  and  they  were  executed.  Lord  Chancellor  King  de- 
creed, that  the  bond  and  conveyances  were  obtained  by  mistake,  and  mis- 
representation of  the  law,  and  ordered  them  given  up  to  be  cancelled. 

This  case  was  closely  criticized  and  doubted  by  the  Supreme  Court  of 
the  United  States,  in  Ekmt  v.  Rousmaniere,  8  Wheat.  214  ;  1  Pet.  215  ;  and 
also  by  Lord  Cottenham,  in  Stewart  v.  Stewart,  6  Clark  &  Fin.  966;  and, 
so  far  as  it  proceeds  upon  a  mere  mistake  of  law,  is  undoubtedly  opposed  to 
the  weight  of  authority.  See  Story  on  Equity,  ch.  5,  Mistake. 
*  26* 


306  LAW   OF  VENDORS   AND   PURCHASERS.         [cil.  XVIII. 

selves,  which  constitute   the   other   element   of  title,  may 
furnish  good  ground  in  equity  for  relief,  (n) 

5.  Tlius,  if  an  executor  purchase  lands  belonging  to  his 
testator's  estate,  at  a  public  sale  made  by  himself  and  his 
co-executors,  under  a  mistake  of  law  as  to  the  power  of  sale 
conferred  on  them  by  the  will,  he  cannot  be  relieved  in 
equity.' 

6.  A  testator  devised  to  his  wife  the  use  of  all  his  real 
estate,  until  his  son  came  of  age,  if  she  should  continue  his 
widow,  and,  if  she  should  marry  again  before  his  son  came 
of  age,  he  bequeathed  to  her  certain  personal  property.  The 
widow  thus  married,  and  received  the  bequest.  The  land 
was  sold  at  sheriff's  sale,  as  the  property  of  the  son.  The 
widow,  her  husband,  and  the  purchaser  entered  into  an 
indenture  under  seal,  reciting  the  purchase,  subject  to  the 
widow's  claim  by  right  of  her  deceased  husband  ;  and  agree- 
ing that  one  third  of  the  income  should  be  paid  to  her  for 

1  Dill  V.  Shahan,  25  Ala.  694. 


(a)  It  has  been  held,  however,  that  a  contract  entered  into  under  a 
mutual  misconception  of  legal  rights,  amounting  to  a  mistake  of  law  in  the 
contracting  parties,  by  which  the  object  of  it  cannot  be  accomplished,  is  as 
liable  to  be  set  aside  or  rescinded,  as  contract  founded  in  mistake  of  matters 
of  fact.     Champlin  v.  Laytin,  1  Edw.  471. 

Where  an  instrument  is  drawn  and  executed  for  the  purpose  of  carry- 
ing into  effect  a  previous  contract,  written  or  parol,  which,  by  mistake  of 
the  draftsman,  in  fact  or  in  law,  does  not  fulfil  the  intention  of  the  parties  ; 
equity  will  correct  the  mistake.  Rogers  v.  Atkinson,  1  Kelly,  12  ;  Collier 
V.  Lanier,  1  Kelly,  238.  So  it  has  been  held,  that,  where  property  has  been 
conveyed,  through  mistake,  which  the  parties  never  intended  should  be 
conveyed,  which  the  grantor  was  under  no  legal  or  moral  obligation  to  con- 
vey, and  whicH  the  grantee  could  not,  in  good  conscience  retain ;  Chancery 
will  correct  the  mistake,  whether  it  arose  from  a  misapprehension  of  the 
facts,  or  of  the  legal  operation  of  the  deed.  Otherwise,  in  general,  where 
the  conveyance  was  such  as  the  parties  intended,  and  the  grantee  may  in 
good  conscience  retain  the  property ;  although  the  grantor  may  mistake  the 
extent  of  his  title.  Stedwell  v.  Anderson,  21  Conn.  139.  It  is  held  that 
Equity  will  not  relieve  for  mistake  of  law,  unless  such  a  mistake  be  a  gross 
one.     Haden  v.  Weare,  15  Ala.  149. 


CH.  XVIII.]  MISTAKE.  307 

life.  The  statute  of  Pennsylvania  of  April  4, 1797,  provides, 
than  any  devise  or  bequest  to  the  testator's  widow  shall  be 
in  lieu  of  dower,  unless  the  testator  otherwise  declare,  or  the 
widow  elect  to  take  her  dower.  Held,  the  purchaser  was 
bound  to  perform  his  agreement.^ 

7.  A  bill  in  Chancery,  brought  by  a  son  against  his  father, 
alleged,  that  it  was  agreed  between  the  parties,  that  the 
plaintiff  should  purchase  of  the  defendant  a  farm  of  the 
value  of  $4,000,  and  give  two  promissory  notes,  one  for 
$2,000  on  demand  with  six  per  cent,  interest,  the  other  for 
the  same  amount,  with  five  per  cent,  interest,  payable  at  the 
decease  of  the  defendant,  and  then  to  be  delivered  up  unpaid 
to  the  son  as  his  portion  of  the  father's  estate  ;  that  the  par- 
ties thereupon  applied  to  a  Justice  of  the  Peace,  to  draw  the 
necessary  waitings  to  carry  such  agreement  into  effect ;  but  by 
accident,  and  through  their  own  want  of  knowledge,  they 
failed  to  give  him  the  information  requisite  for  this  purpose, 
and  he  drew  the  last-mentioned  note  payable  in  three  years, 
and  omitted  the  stipulation  that  it  should  be  delivered  up  at 
the  death  of  the  father,  unpaid,  which  note  was  signed  by 
the  plaintiff,  he  being  ignorant  of  the  operation  of  law 
thereon ;  that  the  defendant  had  brought  an  action  on  such 
note,  and  was  endeavoring  to  enforce  it ;  and  praying  for  an 
injunction  and  other  relief.  Held,  1.  That  the  mistake  was 
not  a  mistake  of  fact,  but  of  law.  2.  That  parol  evidence 
was  inadmissible  to  prove  the  agreement  set  forth.  Bill 
dismissed.^ 

8.  With  regard  to  the  mode  and  extent  of  the  relief 
afforded  by  Courts  of  Equity  for  mistakes  of  fact,  it  is  held 
that  equity  will  relieve  against  mistakes  as  well  as  frauds, 
either  in  a  deed  or  contract  in  writing ;  and  this,  either  where 
the  plaintiff  seeks  relief  affirmatively,  on  the  ground  of  mis- 
take, or  where  the  defendant  sets  it  up  as  a  defence,  or  to 
rebut  an  equity.^     So,  it  seems,  either  by  requiring  the  re- 

1  McAninch  v.  Laughlin,  13  Peun.  Collier  v.  Lanier,  lb.  238;  Goodell  v. 
371.  Field,  15  Verm.  576;  Kosevelt  i;.  Fulton, 

2  Wheaton  v.  Wheaton,  9  Conn.  96.  2  Cow.  129, 

3  Kogers   v.  Atkinson,  1  Kelly,  12  ; 


308  LAW   OF   VENDORS   AND   PURCHASERS.         [CH.  XVIH. 

funding  of  money  paid  under  the  contract,  or  by  annulling  the 
contract  itself.^  Thus  the  common  mistake  of  both  jjarties 
to  a  contract  is  held  to  avoid  such  contract.'-^  So,  specific 
performance  of  an  agreement  being  a  subject  of  discretion, 
it  is  refused  in  case  of  mistake,  though  there  be  no  fraud.^ 
So  trustees  will  not  be  compelled  to  perform  an  agreement 
entered  into  under  mistake,  to  sell  for  an  inadequate  consid- 
eration.^ So  relief  is  given  against  a  contract,  where  the 
purchaser  knew  that  the  vendors,  the  assignees  of  a  bank- 
rupt, were  ignorant  of  a  circumstance  considerably  increas- 
ing the  value.^  So  a  conveyance  obtained  from  persons 
uninformed  of  their  rights  is  set  aside,  though  there  was 
no  actual  fraud  or  imposition.*^ 

9.  But  it  is  equally  well  settled,  that  Courts  of  Chancery 
will  not  interfere  to  correct  alleged  mistakes  in  contracts 
and  deeds,  or  set  them  aside,  unless  those  mistakes  are 
admitted  by  the  defendant's  answer,  or  very  conclusively 
proved."  Thus,  evidence  drawn  from  the  admissions  of  par- 
ties, in  a  casual  conversation,  when  they  are  not  supposed 
to  state  all  the  facts  in  relation  to  a  particular  subject,  has 
been  held  not  satisfactory  for  this  purpose.^  So  it  is  said, 
"  It  must  be  plainly  made  out,  that  the  parties  meant  in 
their  final  instruments  merely  to  carry  into  effect  the  arrange- 
ments designated  in  the  prior  contract  or  articles.  The  very 
circumstance,  that  the  final  instrument  of  conveyance  or 
settlement  differs  from  the  preliminary  contract,  affords  of 
itself  some  presumption  of  an  intentional  change  of  purpose 
or  agreement,  unless  there  is  some  recital  in  it,  or  some  other 
attendant  circumstance,  which  demonstrates,  that  it  was 
merely  in  pursuance  of  the  original  contract."^  So  it  is  held, 
that  the  party  suffering  from  mistake  must  take  pro )?ipt  steps 
for  relief.i'^     And,  if  the  contract  is  made  under  a  mutual 

1  Champlin  w.  Laytin,  18"Wend.407;  ^  Evans  v.  Llewellyn,  2  Bro.  C.  C. 
Griswold  v.  Smith,  10  Vern.  452.  150. 

2  Stapylton  v.  Scott,  13  Ves.  427.  ''  Griswold  v.  Smith,  10  Verm.  452. 

3  Mason  v.  Armitage,  13  Ves.  25.  ^  Cleavland  v.  Burton,  II  Verm.  138. 
*  Bridger  v.  Rice,  1  Jac.  &  Walk.  74.  ^  1  Story's  Eq.  169,  §  152;  177,  §  160. 
5  Turner  v.  Harvey,  Jac.  169.  i°  Beard  v.  Hubble,  9  Gill.  420. 


CH.  XVIII.]  MISTAKE.  309 

mistake  as  to  the  title,  the  vendee  is  entitled  to  a  rescission,  if 
he  seeks  it  in  a  reasonable  time  after  discovery  of  the  mistake, 
and  abandons  the  possession,  delivering  or  offering  to  deliver 
it  to  the  vendor  ;  the  right  to  rescission  not  depending  upon 
his  payment  or  offer  of  the  purchase-money,  nor  upon  the 
vendor's  insolvency,  but  upon  his  own  promptness  in  seeking 
such  rescission.^     (See  s.  30.) 

10.  We  have  already  had  occasion  (Chaps.  13,  17,)  in 
considering  the  general  subject  of  title,  to  discriminate  be- 
tween the  different  classes  of  cases,  in  which  mistakes  occur, 
with  regard  to  the  property  sold,  or  its  quantity  or  value ; 
sometimes  not  in  any  way  affecting  the  validity  of  the  con- 
tract; sometimes  merely  giving  the  right  of  compensation 
or  indemnity ;  and  sometimes  authorizing  an  entire  rescission. 
At  the  risk  of  occasional  repetition,  it  becomes  necessary,  in 
the  present  connection,  as  bearing  directly  upon  the  subject 
of  this  chapter,  to  consider  the  effect  of  mistake  upon  the 
binding  authority  of  the  contract  of  sale  and  purchase,  in 
the  threefold  aspect  above  mentioned. 

11.  The  most  common  mistake  in  sales  of  real  estate 
relates  to  the  quantity  of  land  conveyed,  as  compared  with 
the  agreement  or  intent  of  the  parties  upon  that  subject. 
The  general  principle  is  laid  down,  that  the  vendor  of  land, 
as  containing  a  certain  quantity,  more  or  less,  when  he 
knows  from  the  title  deeds  or  otherwise,  that  it  contains  a 
much  less  quantity,  is  in  equity  bound  to  make  good  the 
difference.  But,  where  a  contract  has  been  consummated 
without  any  fraud,  misrepresentation,  or  concealment  as  to 
the  quantity,  the  Court  will  not  inquire  whether  there  has 
been  a  mistake  upon  that  point.^  So,  if  the  vendor  sells,  and 
the  vendee  buys,  a  tract  of  land,  for  so  many  acres,  more  or 
less,  and  it  turns  out  upon  a  survey,  that  there  is  less  than 
the  estimated  quantity,  the  buyer  shall  not  be  relieved  in 
equity.^  Where  a  specified  tract  of  land  is  sold  for  a  sum 
in  gross,  the  boundaries  control  the  description  of  the  quan- 

1  Smith  V.  Robertson,  23  Ala.  312.  ^  Jollife  v.  Hite,  1  Call,  262. 

2  Veeder  v.  Ponda,  3  Paige,  94. 


310  LAW   OP   VENDORS   AND   PURCnASERS.        [CII.  XVIII. 

tity,  and  neither  party  can  have  'a  remedy  against  the  other, 
for  an  excess  or  deficiency,  unk'ss  it  is  so  great  as  to  furnish 
evidence  of  fraud  or  misrepresentation;  otherwise,  where 
the  mistake  is  in  the  boundaries,  and  not  in  the  quantity  of 
acres.  So  where  the  deficiency  is  not  in  the  thing  described, 
but  in  the  ability  of  the  defendant  to  convey  it.^  So  it  is  said, 
the  cases  in  which  equity  interferes,  where  the  quantity  of 
the  land  exceeds  or  falls  short  of  that  specified  in  the  deed 
or  contract,  are  those  in  which  the  sale  has  been  made  by  the 
acre  or  foot ;  or  where  there  has  been  fraud  or  wilful  misrep- 
resentation on  the  part  of  the  party  against  whom  relief  is 
sought.-  So  where  there  is  a  written  contract  for  the  sale  of 
land  by  the  acre,  equity  will  not  relieve  the  purchaser  on  the 
ground  of  a  mutual  mistake  as  to  the  boundaries,  unless  the 
mistake  be  fully  and  clearly  proved.^ 

12.  But  in  case  of  a  sale  of  land  by  the  acre,  relief  is  to  be 
granted  for  all  deficiencies,  not  reasonably  imputable  to  the 
variation  of  instruments,  and  small  errors  in  surveys,  whether 
the  purchaser  has  expressly  retained  an  election  to  have  the 
tract  surveyed  or  not.*  And  this  principle  is  not  departed 
from,  but  in  case  of  a  sale  by  the  tract,  the  purchaser  clearly 
agreeing  to  take  the  hazard  of  all  deficiencies  upon  him- 
self.5  (a) 

1  Voorhecs  v.  De  Meyer,  2  Barb.  37.  5  gee  JolifFe  v.  Hite,  1  Call,  .301,  .329  ; 

2  Morris,  &c.j;.Emmett,  9  Paige,  168.  Hull   v.    Cunnincrham,    1    Miinf.    336; 

3  Leas  V.  Eidson,  9  Gratt.  277.  Grantland  v.  Wight,  2  Munf.  179;  Du- 
*  Nelson  v.  Carrington,  4  Munf.  332.  vals  v.  Ross,  Ibid.  290. 

See  Quesnell  v.  Woodlief,   2  H.  &  M. 
174  ;  Nelson  v.  Matthews,  Ibid,  164, 181. 

(a)  If  A.  purchase  a  tract  of  land  as  "  containing  about  a  specified  num- 
ber of  acres,  more  or  less,  at  a  certain  price  per  acre,  the  quantity  to  be 
ascertained  by  actual  survey,  if  A.  shall  require  it ;  "  this  is  a  sale  by  the 
acre,  if  A.  shall  require  the  survey.  And  if  no  time  be  specified  for  making 
his  election,  he  may  demand  the  survey  at  any  time  before  the  whole  busi- 
ness shall  have  been  concluded,  and  a  title  to  the  land  made  or  tendered  by 
the  vendor.  So  though  he  has  taken  possession,  or  given  bonds  for  the 
purchase-money.  Nor  is  such  right  necessarily  limited  by  the  last  day 
of  payment ;  for  even  then  he  is  not  bound  to  part  with  the  purchase- 
money,  nor  to  make  a  final  adjustment  of  the  balance  due,  unless  a  title  is 
made  or  tendered,  agreeably  to  the  contract.     4  Munf.  332. 


CH.  XVIII.]  MISTAKE.  311 

13.  The  plaintiff  sold  to  the  defendant  three  tracts  of  land, 
"  containing  nine  hundred  ninety-one  acres  and  a  quarter, 
and  allowance,  at  twelve  shillings  and  sixpence  per  acre." 
The  plaintiff  afterwards  obtained  patents  in  his  own  name, 
and  executed  a  conveyance  of  the  tracts  to  the  defendant, 
describing  them  by  courses  and  distances  according  to  the 
patents,  and  as  "  containing  in  the  whole  nine  hundred 
ninety-one  acres  and  a  quarter,  and  allowance,  &c.,  be  the 
same  more  or  less."  The  defendant,  having  previously  paid 
a  part  of  the  purchase-money,  gave  his  bonds  for  the  balance 
on  the  day  after  the  conveyance,  with  a  mortgage  on  the 
three  tracts,  stating  them  to  contain  "  in  the  whole  nine 
hundred  ninety-one  acres  and  a  quarter,  and  allowance,"  and 
describing  them  by  courses  and  distances.  Upon  a  survey 
made  twelve  years  afterwards,  the  tracts  were  ascertained  to 
fall  short  88  acres,  48  perches.  Held,  the  defendant  was 
not  entitled  to  any  deduction  from  his  bonds  on  account  of 
the  deficiency. 

14.  Bond  to  convey  a  lot  of  land,"  number  78,  in  the 
township  of  Lysander,  &c.,  containing  600  acres.  A  deed 
was  delivered,  describing  the  lot  as  "  containing  600  acres, 
be  the  same  more  or  .less."  On  actual  survey,  the  lot  was 
found  to  contain  only  461|  acres.  In  an  action  on  the  bond, 
held,  the  mention  of  the  quantity  of  acres  was  matter  of 
description,  and  the  delivery  of  the  deed  for  the  lot,  accord- 
ing to  its  usual  and  known  description,  was  a  performance 
of  the  bond.i 

15.  Agreement  by  A.  in  November,  1811,  to  convey  "  all 
his  plantation  in  L.  township,  adjoining  lands  of  D.,  B.,  and 
others,  reference  being  had  to  several  deeds  of  conveyance 
to  A.  will  show  the  metes  and  bounds ;  the  whole  tract  con- 
tains 225  acres  and  allowance  ;  201  acres  the  said  A.  has  a 
patent  deed  for,  and  the  remaining  24  he  will  also  get  a 
patent  deed  for."  In  April,  1812,  a  conveyance  was  made 
of  225  acres,  more  or  less,  the  hand  money  paid,  and  bonds 

1  Mann  v.  Pearson,  2  Johns.  37. 


312  LAW   OF   VENDORS   AND   PURCHASERS.         [ciI.  XVIII. 

given  for  the  residue.  In  1823,  the  vendee  discovered  by 
actual  measurement,  that  the  patented  tract  fell  short  20 
acres  and  90  perches.  Hold,  he  was  not  entitled  to  any 
deduction,  in  a  suit  on  one  of  the  bonds,  for  tiiis  deficiency.' 
16.  We  have  heretofore  (Chap.  13,)  spoken  of  the  effect 
upon  the  sale  of  a  partial  ivant  of  title.  This  is  to  be  under- 
stood as  the  result  of  mistake ;  inasmuch  as  any  fraud  of 
the  vendor  avoids  the  sale,  alike  whether  the  failure  of  title 
be  partial  or  total.  Upon  this  subject  it  has  been  held,  that, 
where  land  is  sold  at  auction  in  separate  lots,  and  several 
are  purchased  by  one  person,  this  is  not  an  entire  contract ; 
and,  if  the  vendor  cannot  give  a  title  as  to  all  the  lots,  the 
vendee  cannot  rescind  the  agreement  in  toto,  but  must  take 
a  conveyance  of  such  as  he  is  authorized  to  convey.  In  such 
case,  the  vendor  is  bound,  if  required,  to  give  separate  deeds, 
and  his  offer  to  execute  one  deed  for  the  whole  does  not 
render  the  contract  entire.^  So  the  complainant  sold  at 
auction  to  the  defendant  several  parcels  of  adjoining  land, 
separately,  but  delayed  several  years  to  execute  the  convey- 
ances, though  importuned  to  do  so.  Afterwards  the  defend- 
ant discovered,  that  the  title  of  one  of  the  tracts,  a  principal 
one,  was  not  in  the  vendor ;  and  refused  to  complete  the 
purchase,  alleging  that  this  tract  wa«  .the  principal  object  of 
the  purchase,  but  offering  on  the  trial  no  proof  of  this  alle- 
gation. Held,  there  was  no  ground  to  vacate  the  contract ; 
that  the  delay  in  executing  the  conveyances  should  not  pre- 
vent a  specific  performance,  but  was  ground  only  for  deduct- 
ing interest.^ 

,  17.  With  regard  to  the  right  of  compensation  for  partial 
failure  of  title  ;  it  is  held  that  a  Court  of  Equity  may  inquire 
into  all  the  circumstances,  and  ascertain  how  far  one  part 
of  the  bargain  induced  the  rest,  and  award  compensation 
accordingly ;  but  at  law,  a  vendor  cannot,  on  an  entire  con- 
tract, recover  any  part  of  the  purchase-money,  where  he 

1  Frederick  v.  Campbell,  13  S.  &  R.        ^  Van  Eps  r.  Schenectady,  12  Johns. 
136  ;  M'Lellaud  v.  Creswell,  lb.  143.         436. 

^  Osborne  v,  Bremar,  1  Desaus.  486. 


CH.  XVIII.]  MISTAKE.  313 

cannot  make  title  to  the  whole  estate,  nor  is  a  purchaser 
entitled  to  retain  that  part,  the  title  to  which  is  good,  and 
vacate  the  contract  as  to  the  rest.^  Thus  it  is  held  that, 
where  a  farm  is  sold  for  a  gross  sum,  or  at  so  much  per 
acre,  and  the  quantity  mistaken  by  the  parties,  equity  will 
relieve  the  party  injured.  The  vendee  has  a  right  to  take 
the  farm  at  the  price  of  the  real  number  of  acres,  and  to 
have  compensation  for  the  deficiency,  if  he  has  paid  the 
consideration.  But  it  may  be  otherwise,  if  the  statement 
of  the  quantity  be  mere  matter  of  description,  and  not  of 
the  essence  of  the  contract ;  as  where  the  contract  contains 
the  words  "  more  or  less,"  or  "  containing  by  estimation," 
&c. ;  although,  if  there  be  any  fraud  or  wilful  misrepresen- 
tation of  the  quantity,  equity  will  afford  relief  even  in  these 
latter  cases.^  So,  if  the  title  to  part  of  the  land  sold  fails, 
the  vendee  may  claim  a  specific  performance  as  to  the  re- 
mainder, and  a  compensation  in  damages.^  More  especially, 
want  of  title  to  an  unimportant  part  of  the  ground  is  a 
subject  of  compensation,  not  a  ground  for  rescission.*  So, 
where  a  purchaser  cannot  get  a  title  to  all  he  contracted  for, 
if  he  can  get  the  substantial  inducement  to  the  contract,  he 
may  insist  upon  taking,  or  he  may  be  compelled  to  accept,  a 
title,  with  reasonable  compensation.^  So,  in  a  sale  of  land 
by  the  acre,  and  not  of  a  tract  in  gross,  if  an  unusual  and 
unreasonable  excess  or  deficit  appears.  Chancery  will  relieve ; 
particularly  if  the  deed  contains  no  indication  that  the  ven- 
dor intended  to  sell  the  tract  "  more  or  less."  ^  Thus  a 
mistake  of  the  parties,  in  a  sale  by  the  acre,  of  the  boun- 
daries of  the  patent  under  which  the  vendor  sold,  whereby 
he  sold  and  conveyed  1000  acres  outside  of  the  grant;  is 
ground  for  relief  against  payment  of  so  much  of  the  pur- 
chase money ;    although,  the  land  not  obtained  not  being 

1  Johnson  v.  Johnson,  3  B.  &  P.  162  ;  ■  *  Durrett  v.  Simpson,  3  Monr.  519. 
Chit,  on  Contr.  303.  ^  Evans  v.  Kingsberry,  2  Kand.  120. 

2  Stebbins  v.  Eddy,  4  Mas.  414.  «  Whaley  v.  Eliot,  1  A.  K.  Marsh- 

3  Morss  V.  Elmendorf.  11  Paige,  277.  343. 

27 


314  LAW    OF   VENDORS   AND    PURCHASERS.  [CH.  XVni. 

material  to  the  purchaser,  he  cannot  have  a  rescission.^  (a) 
So,  though  land  be  sold  in  gross,  for  so  much,  be  it  more  or 
less ;  yet,  if  both  parties  were  clearly  mistaken  in  a  material 
point,  as  to  the  lines  by  which  the  vendor  held,  and  there 
was  no  express  agreement  of  the  purchaser  to  take  the  risk, 
.equity  will  give  relief  for  the  deficiency.  But,  unless  the 
purchaser,  by  eviction  or  otherwise,  lose  the  land  he  expected 
to  get ;  as  if  he  make  an  entry  for  it  as  vacant,  and  obtain  a 
patent ;  the  proper  measure  of  relief  is  only  the  amount  of 
his  expenditures  in  procuring  the  patent,  with  a  reasonable 
allowance  for  trouble,  and  actual  costs  of  suit.^ 

18.  Diminution  of  one  hundred  and  seventy-one  acres  of 
high  land,  out  of  six  hundred  and  sixty-two  acres  of  high 
and  swamp  land.  Notice  was  given  at  the  sale  that  a  claim 
existed,  and  that,  if  it  succeeded,  a  proportional  deduction 
would  be  made.  Moreover,  the  purchaser  voluntarily  re- 
newed the  bond  for  the  price  in  part  to  a  third  person,  sev- 
eral years  after  the  purchase  ;  and  the  renewed  bond  had 
been  assigned  for  valuable  consideration.  Held,  no  ground 
for  a  rescission ;  but  that  the  purchaser  was  entitled  to  a 
deduction  out  of  the  original  bond ;  also  of  interest  till  a 
re  survey  by  the  vendor.^ 

19.  In  1788,  the  defendant,  owning  a  tract  of  land  called 
Sion  Hill,  held  by  him  and  his  forefathers  under  a  survey 
upwards  of  a  hundred  years  old,  advertised  it  for  sale  as  con- 
taining about  eight  hundred  acres  ;  and  believing  that,  as  it 
was  an  old  survey,  it  would  probably  contain  more  than 
eight  hundred  acres,  he  afterwards  sold  it  to  the  plaintiff, 
according  as  it  had  been  held  by  him  and  his  ancestors  under 
the  old  survey,  for  £3,200,  (equal  to  <£4  per  acre,)  offering  to 
survey  it,  if  the  plaintiff  would  pay  at  the  same  rate  for  the 

1  Grant  V.  Coombs,  6  Monr.  281.  ^  Wainwright  v.  Kead,  1  Dcsaus.  573. 

2  Hull  V.  Cunningham,  1  Munf.  330. 

(o)  Whether  a  sale  of  land  be  by  the  acre,  or  in  gross,  is  a  question  of 
intention  of  the  parties,  to  be  collected  from  all  the  circumstances  of  the 
transaction.     Bierne  v.  Erskine,  5  Leigh,  59. 


CH.  xviil]  mistake.  315 

excess  ;  which  the  latter,  (who  also  believed  that  it  contained 
more  than  eight  hundred  acres,  as  it  was  an  old  survey,)  de- 
clined. Subsequent  to  the  execution  of  the  deed,  the  plain- 
tiff had  the  land  surveyed,  and  found  it  to  contain  much  less 
than  eight  hundred  acres.  Whereupon  he  filed  a  bill  in 
chancery,  for  a  proportional  deduction  from  the  purchase- 
money.  Held,  the  deficiency  was  too  great  for  a  purchaser, 
notwithstanding  the  sale  was  for  eight  hundred  acres,  more 
or  less.  Decree  for  a  deduction,  and  also  an  indemnity 
against  all  charges  and  incumbrances  on  the  estate.^ 

20.  Where  a  vendor  erroneously  supposes  he  has  title  to 
certain  land,  and  contracts  to  sell  and  convey  it,  he  cannot 
be  compelled  to  convey  an  adjoining  lot,  to  which  he  has 
title.2 

21.  A  deduction,  for  want  of  title  to  part  of  the  land,  was 
directed  to  be  taken  equally  off  all  the  instalments.^ 

22.  There  is  a  still  stronger  class  of  cases,  where  equity 
will  wholly  rescind  or  annul  the  bargain,  by  reason  of  mistake 
of  one  or  both  of  the  parties.  Thus  it  is  said,  that  a  vendor 
is  bound  to  know  he  actually  has  that  which  he  professes  to 
sell.  And,  even  though  the  subject  of  the  contract  be  known 
to  both  parties  to  be  liable  to  a  contingency,  which  may 
destroy  it  immediately,  yet,  if  the  contingency  has  already 
happened,  it  will  be  void.*  Thus,  if  one  person  should  sell  a 
messuage  to  another,  which  was  at  the  time  swept  away  by 
a  flood,  or  destroyed  by  an  earthquake,  without  any  knowl- 
edge of  the  fact  by  either  party ;  equity  would  relieve  the 
purchaser.^  So,  if  a  life-estate  be  sold,  which,  at  the  time  of 
sale,  is  terminated  by  the  death  of  the  party  in  whom  it  is 
vested,  but  without  the  knowledge  of  either  party ;  equity 
will  rescind  the  contract.*^  So  where  a  purchaser  buys  the 
interest  of  a  vendor  in  a  remainder  in  fee,  expectant  on  an 
estate  tail ;  if,  at  the  time  of  the  contract,  the  tenant  in  tail 

1  Quesnel  v.  Woodlief,  6  Call,  218;  *  Hitchcock  v.  Giddings,  Daniel's 
S.  C.  2  Hen.  &Munf.  173,  n.  Exch.  R.  1. 

2  Morse  v.  Elmendorf,  11  Paige,  277.  ^  Hitchcock  v.  Giddings,  4  Price,  135. 

3  Grant  v.  Coombs,  6  Mon.  281.  ^  Allen  v.  Hammond,  11  Pet.  71. 


316  LAW   OF   VENDORS  AND   PURCnASERS.  [CH.  XVIH. 

had  actually  suffered  a  recovery,  of  which  both  parties  were 
ignorant  till  after  the  conveyance  had  been  executed,  and 
an  absolute  bond  given  for  the  purchase-money ;  equity  will 
rescind  the  contract,  on  the  ground  that  the  vendor  had  no 
interest  in  the  subject-matter  at  the  time  of  the  sale.^  So 
where,  by  the  mistake  of  both  parties,  one  contracted  to  sell 
and  convey,  and  the  other  to  purchase  and  pay  for,  a  sup- 
posed gore  of  land,  which  had  in  fact  no  actual  existence ; 
the  vendee  cannot  file  a  bill  in  equity  for  specific  perform- 
ance, or  for  a  compensation  in  damages.^  So,  where  an 
estate  is  purchased  at  auction,  under  a  mistake  as  to  the  lot 
put  up  for  sale,  the  Court  will  not  decree  specific  perform- 
ance against  the  purchaser,  but  leave  the  vendor,  if  he  has 
sustained  any  damage  by  the  mistake  of  the  purchaser,  to 
his  remedy  at  law.  A  bill  for  specific  performance  was 
accordingly  under  such  circumstances  dismissed,  without 
costs.3  So  where,  at  the  time  of  entering  into  a  contract 
for  sale  of  a  tract  of  land,  there  was  a  misunderstanding  be- 
tween the  parties  as  to  the  identity  of  the  land,  to  which  the 
contract  related ;  a  court  of  equity,  in  its  discretion,  ought 
not  to  interfere  by  decreeing  a  specific  performance.^ 

23.  The  general  doctrine  upon  this  subject  is  stated  to  be, 
that,  in  an  executed  contract,  where  there  has  been  a  gross 
mistake  in  the  quantity  sold,  for  "more  or  less,"  the  com- 
plaining party,  who  has  practised  no  fraud,  nor  any  culpable 
negligence,  nor  impaired  his  equity  in  any  other  way,  is  enti- 
tled to  relief  in  chancery.  And  his  condition  is  still  more 
favorable,  where  the  opposite  party  comes  int»  chancery  for 
a  specific  execution ;  for  then  he  must  show  that  he  has  a 
clear  right  to  it,  equitably  and  conscientiously ;  otherwise  he 
will  be  left  to  his  legal  remedy.  With  regard  to  the  degree 
or  amount  of  excess  or  deficiency  necessary  to  constitute 
a  gross  mistake,  a  difference  of  33  per  cent.,  between  the 
actual  and  the  estimated  quantity  of  land  sold  in  the  gross, 

1  Hitchcock  V.  Giddings,  4  Price,  135.        ^  Malins  v.  Freeman,  2  Kee.  25. 

2  Morss  V.  Elmendorf,  11  Paige,  277.        *  Graham  v.  Hendren,  5  Muaf.  185. 


CH.  XVIII.]  MISTAKE.  317 

has  been  held  to  raise  a  presumption  of  such  mistake,  and 
give  a  claim  to  relief  in  chancery.^ 

24.  Although,  as  has  been  seen,  (Ch.  13,)  the  conditions  of 
sale  provide  that  any  error  or  misstatement  in  the  particulars 
shall  not  vitiate  the  sale,  but  be  made  the  subject  of  compen- 
sation to'  the  vendor  or  purchaser,  as  the  case  may  be ;  this 
condition  will  not  apply  to  a  wilful  or  fraudulent  misstate- 
ment. Thus,  where  an  estate  thus  sold  was  described  as 
about  one  mile  from  Horsham,  a  borough  town,  when  in  fact 
it  was  between  three  and  four  miles  ;  in  an  action  to  recover 
the  deposit.  Lord  Ellenborough  remarked,  that  the  clause  in 
question  was  designed  to  meet  unintentional  errors ;  not  to 
compel  the  purchaser  to  complete  the  contract,  if  designedly 
misled  ;  and  left  this  question  to  the  jury ;  who  found  a  ver- 
dict for  the  plaintifF.2 

25.  The  vendor  as  well  as  the  vendee  may  claim  relief  on 
the  ground  of  mistake.  Thus,  if  lands  be  sold  by  metes  and 
bounds  ;  and  the  vendor  covenant  to  warrant  the  title  ;  he  is 
bound  to  include,  in  a  conveyance  with  warranty,  and,  in 
case  of  eviction,  to  make  compensation  for,  all  the  lands 
within  those  bounds,  which  he  held  and  claimed  as  his  own 
at  the  time  of  sale,  and  showed  to  the  purchaser  as  part  of 
the  lands  sold  ;  notwithstanding  his  title  thereto  may  be  de- 
fective. But  not  lands  which  were  not  thus  held  and  claimed, 
nor  thus  shown  ;  although  his  title  papers  may  comprehend 
them.'^ 

26.  But  when  a  tract  is  sold  upon  a  conjectural  estimate 
of  the  quantity,  for  a  gross  sum,  and  the  variance  is  not  very 
extraordinary,  showing  that  it  could  not  have  been  contem- 
plated, there  can  be  no  relief.  Thus  it  is  held,  that  a  surplus 
of  forty  or  fifty  acres,  in  a  tract  of  one  thousand,  would  not 
justify  a  decree  for  the  value  of  the  surplus.^  So  if  one,  who 
has  obtained  a  sm'vey  upon  a  land  warrant  for  two  thousand 
acres,  sell  and  transfer  it  for  valuable  consideration,  and 

1  Harrison  v.  Talbot,  2  Dana,  258.  Innis   v.    M'Crummin,    12    Mart.   425  ; 

2  Norfolk  V.  Worthy,  1  Camp.  337.  Morris  v.  Emmett,  9  Paige,  168. 

3  Beverley  v.  Lawson,  3  Munf.  317  ;  *  Clark  v.  Bell,  4  Dana,  115. 

27* 


318  LAW   OF   VENDORS   AND   PURCHASERS.  [CU.  XVIII. 

assign  the  plat  and  certificate  to  the  purchaser,  whereupon 
he  obtains  a  patent  in  his  own  name ;  and  if,  upon  a  resur- 
vey,  it  appear  that  the  grant  conveys  two  thousand  seven 
hundred  acres  ;  the  vendor  cannot  in  equity  support  a  claim 
for  the  surplus  against  the  vendee.^ 

27.  Upon  a  sale  of  land  by  auction,  the  advertisement  de- 
scribed the  tract  as  containing  three  hundred  acres.  On  the 
day  of  sale,  doubts  being  expressed  as  to  the  quantity,  the 
vendor  said,  "  he  would  sell  it  at  three  hundred  acres,  more 
or  less,  and  he  would  sell  it  by  the  acre,  and  it  should  be 
measured ; "  and  it  was  accordingly  cried  and  sold  at  so 
much  per  acre.  Held,  the  vendee  was  bound  to  take  it, 
although  a  subsequent  survey  showed  an  excess  of  forty -five 
acres.  Also,  that,  if  the  vendee  refused  to  carry  the  sale  into 
execution,  and  the  vendor  resold  at  a  less  price,  the  vendee 
would  be  liable  for  the  loss.  If  the  vendor  acted  bond  fide, 
and  with  reasonable  care,  the  measure  of  damages  is  the 
difference  of  price  on  the  resale.^  So,  if  A.  contract  to  con- 
vey to  B.  one  hundred  acres  of  land,  adjoining  C,  and  make  a 
deed,  according  to  a  mistaken  survey  furnished  by  a  surveyor, 
calling  for  one  hundred  acres  ;  and  afterwards  the  tract  is 
ascertained  to  contain  one  hundred  and  nineteen  acres  ;  A.  is 
entitled  to  a  reconveyance  of  the  surplus.^  But  a  vendee, 
required  to  sun-ender  a  surplus,  may  elect  from  which  end  or 
side  of  the  tract  it  shall  be  taken.'^  So,  where  A.  purchased 
of  B.  one  hundred  and  sixty -five  acres  of  land,  but  obtained 
from  B.  an  obligation  to  convey  all  his  right  in  the  tract,  that 
right  being  supposed  to  be  only  one  hundred  and  sixty-five 
acres,  but  which  turned  out  to  be  more ;  equity  will  not  en- 
force the  claim  for  the  surplus.^  And,  in  general,  whenever 
it  does  not  clearly  appear,  that  land  was  sold  by  the  tract, 
and  not  by  the  acre,  the  vendee  ought  to  be  responsible  for 
the  value  of  the  surplus  land ;  which  value  is  ordinarily  to 

1  Vowles  V.  Craig,  8  Cranch,  371.  *  Harrison  v.  Talbot,  2  Dana,  266. 

2  Asticom  V.  Smitli,  2  Penii.  211.  5  Smith  v.  Smith,  4  Bibb,  81. 
^  Gilmorc  v.  Morgan,  2  J.  J.  Marsh. 

65. 


CH.  XVIII.]  MISTAKE.  319 

be  estimated  by  the  average  value,  per  acre,  of  the  whole 
purchase.^ 

28.  Sale  of  a  tract  of  land,  described  in  a  covenant  for  a 
conveyance,  by  its  boundaries,  and  as  containing  four  hun- 
dred acres,  for  $6,000.  It  really  contained  four  hundred  and 
ninety  acres ;  and  the  vendee  files  his  bill  for  a  conveyance 
of  the  whole  for  $6,000.  The  vendor  insists,  that  the  sale 
was,  in  fact,  by  the  acre,  at  $15,  the  parties  being  under  a 
mistake  as  to  the  quantity,  which,  from  a  family  tradition, 
had  been  called  four  hundred  acres  ;  and  that  he  had  a  right 
to  retain  the  surplus,  unless  he  was  paid  for  it.  Decree  for 
the  plaintiif.- 

29.  Where  part  of  a  tract  of  land  is  lost,  but  there  is  a 
surplus  in  the  tract,  for  which  the  vendor  is  entitled  to  pay ; 
and,  the  value  of  the  surplus  exceeding  the  loss,  the  latter  is 
deducted,  and  a  decree  rendered  for  the  balance ;  it  should 
so  appear  by  the  decree  ;  which  should  also  release  the  ven- 
dor from  his  obligation  to  convey  the  lost  land.^ 

30.  A  vendee  may  waive  his  right  to  rescind  on  the  ground 
of  mistake.  Thus  a  sale  was  at  first  made  of  a  farm,  for  so 
much  per  acre,  to  be  ascertained  by  measurement.  After- 
wards, the  parties  agreed  to  waive  any  measurement,  and 
the  vendee  took  the  farm  at  the  gross  sum  of  $2,500,  sup- 
posing it  to  contain  fifty  acres,  from  the  representation  of 
the  vendor ;  which  the  vendor  himself  believed  to  be  true. 
In  the  deeds,  the  quantity  was  stated  to  be  forty-seven  and  a 
half  acres,  more  or  less.  The  real  quantity  was  forty  acres 
and  a  half.  Held,  the  vendee  was  not  entitled  to  relief  in 
equity,  each  party  having  been  well  acquainted  with  the  local 
boundaries  of  the  farm.'* 

31.  But  equity  will  not  hold  the  rights  of  a  party  to  be 
waived,  except  by  unequivocal  acts  or  declarations  of  such 
waiver.  Thus,  in  a  case  of  mistake  by  conveying  to  a  hus- 
band and  wife,  instead  of  conveying  to  the  wife   alone ; 

1  Hundley  v.   Lyons,    5   Munf.  342.         »  Clark  u.  Bell,  4  Dana,  115. 
See  Nelson  v.  Matthews,  2  H.  &  M.  178.        *  Stebbins  v.  Eddy,  4  Mas.  414. 
^  Harrison  v.  Talbot,  2  Dana,  258. 


320  LAW   OF   VENDORS   AND   PUKCHASERS.  [CII.  XVin. 

upon  a  bill  in  equity  brought  after  the  death  of  tlie  wife, 
by  her  heirs,  it  appeared,  that  more  than  twenty  years  had 
elapsed,  between  the  execution  of  the  deeds  and  the  com- 
mencement of  the  suit ;  during  which  time,  the  defendant 
was  in  possession,  and  his  wife  never  called  upon  him  to 
rectify  the  mistake,  or  complained  of  it  to  him  ;  but  also, 
that  he  was  unquestionably  entitled  to  the  use  of  the  prop- 
erty, that  there  was  nothing  in  the  manner  of  that  use 
adapted  to  awaken  suspicion  of  mistake,  and  that  she  had 
no  knowledge  of  the  mistake,  until  about  a  year  and  a  half 
before  her  death,  and,  when  it  was  communicated  to  her, 
was  troubled  about  it.  Held,  the  lapse  of  time  did  not  affect 
the  rights  of  the  plaintiffs.^ 

32.  The  plaintiff  purchased  at  auction  a  house,  of  which 
he  did  not  know  the  position,  by  the  description  in  the  par- 
ticulars of  sale,  of  No.  58  on  the  north  side  of  Pall  Mall, 
opposite  Marlborough  House.  The  same  particulars  stated 
the  amount  of  the  rent,  rates,  and  taxes  of  the  house.  The 
house  was  not  in  Pall  Mall,  but  behind  No.  57  Pall  Mall, 
and  only  connected  with  Pall  Mall  by  a  narrow  passage 
leading  through  the  ground  floor  of  No.  57,  and  communica- 
cating  with  the  street  by  a  door  numbered  58.  He  did  not 
make  any  objection  to  this,  but,  upon  discovering  that  the 
cellars  of  No.  57  extended  underneath  this  passage,  and  un- 
der a  small  part  of  No.  58,  and  that  the  floor  of  the  passage 
was  not  very  strong,  he  filed  a  bill  to  set  aside  the  contract, 
and  for  the  return  of  the  deposit,  with  interest.  Held,  he 
was  entitled  to  this  relief,  notwithstanding  that  by  his  con- 
duct he  had  waived  his  right  to  object  to  the  position  of  the 
house,  upon  the  ground  that  the  passage  was  not  such  an 
access  to  the  house  as  he  was  entitled  to  expect,  from  the 
description.^ 

33.  The  ordinary  course,  as  has  been  seen,  for  correcting 
mistakes  by  the  interposition  of  a  court  of  equity,  is  to  re- 

1  Stedwell  u.  Anderson,  21  Conn.  139.  ^  Stanton  v,  Tattersall,  21  Eng.  Law 

&  Eq.  154. 


CH.  XVni.]  MISTAKE.  321 

scind  the  sale  in  whole  or  in  part,  or  decree  restitution  of  the 
purchase-money.  The  same  object  is  also  accomplished,  by 
reforming'  the  agreement  or  the  conveyance  in  which  a  mis- 
take is  alleged  and  proved  to  have  been  made,  (a)  The 
general  doctrine  is,  that  a  court  of  chancery  will  correct  a 
written  instrument,  where  through  mistake  it  was  written 
differently  from  the  intention  of  the  parties.^  And  such  relief 
is  not  effected  by  erasures  or  interlineations  of  the  instru- 
ment, but  by  injunctions,  and  orders  for  necessary  and  proper 
releases.2 

34.  It  was  agreed  by  a  father  and  his  children,  three  sons 
and  a  daughter,  that  referees  should  divide  his  real  estate 
into  two  parts,  assigning  one  part  to  two  of  the  brothers,  and 
the  other  part  to  the  other  brother  and  the  sister.  This  being 
done,  the  brother  and  sister  agreed,  with  the  assent  of  the 
father,  that  the  referees  should  divide  their  portion  between 
the  two,  which  was  done ;  but,  there  being  no  buildings  on 
the  land  assigned  to  the  sister,  they  assigned  to  her  an  un- 
divided half  of  the  buildings.  The  father  then  caused  deeds 
to  be  written  by  one  of  the  referees,  that  to  the  sister  being 
intended  and  supposed  to  be  a  deed  of  the  part  assigned  to 
her  by  the  last  award.  They  were  executed  by  the  father, 
and  delivered  to  A.,  to  be  delivered  to  the  grantees  on  his 
death.  By  mistake,  the  deed  to  the  sister  did  not  include 
the  undivided  half  of  the  buildings.  Held,  equity  would  de- 
cree, that  deeds  of  release  should  be  executed  by  the  respon- 

1  Goodell  V.  Field,  15  Verm.  576.              2  Smjth  v.  Greeley,  14  N.  H.  378. 
• . 

(a)  The  general  power  of  reforming  contracts,  as  a  distinct  branch  of 
equity  jurisdiction,  has  not  been  conferred  on  the  Supreme  Court  of  Massa- 
chusetts. (See  Statutes,  1847,  ch.  214.)  Babcock  v.  Smith,  22  Pick. -69. 
See  Bellows  v.  Stone,  14  N.  H.  175.  Where  neither  fraud,  mistake,  or 
surprise  is  proved,  a  court  of  equity  will  not  interfere  to  reform  an  agree- 
ment or  deed,  which  is  such  as  the  parties  designed  it  to  be,  A  conventional 
trust  cannot  be  set  up  on  a  special  paf-ol  agreem^ent,  inconsistent  with  the 
terms  of  the  deed.     McElderry  v.  Shipley,  2  Md.  25. 


822  LAW   OF  VENDORS   AND   PURCHASERS.         [CH.  XVin. 

dents  to  the  oratora,  (the  sister  and  her  husband,)  of  one 
undivided  half  of  the  buildings  J 

35.  Four  sisters  being  the  joint  owners  of  land,  they  and 
their  husbands  mutually  agreed,  that  it  should  be  aparted  to 
them  in  severalty.  One  of  the  husbands  undertook  to  pre- 
pare deeds  for  that  purpose ;  and  by  mistake,  misapprehen- 
sion, and  ignorance,  the  name  of  each  husband,  as  a  grantee 
with  his  wife,  was  inserted.  There  was  no  intention,  in  any 
of  them,  to  convey  to  the  husbands  a  greater  interest  than 
they  would  be  entitled  to,  as  husbands  ;  but,  under  the  deeds, 
each  husband  took  an  estate  in  fee.  One  of  the  sisters  died, 
without  having  had  issue.  Upon  a  bill  in  chancery,  brought 
by  her  heirs  at  law,  against  her  husband,  who  was  in  posses- 
sion, claiming  title  under  one  of  the  deeds  ;  held,  as  the  de- 
fendant was  concerned  in  making  and  carrying  out  the  mis- 
take, as  he  had  paid  nothing  for  the  land,  and  as  he  was  now 
holding  it  contrary  to  the  intention  and  agreement  of  the 
parties,  the  plaintiffs  were  entitled  to  a  decree  in  their  favor, 
establishing  the  title  in  them.^ 

36.  Where,  by  a  mistake  of  boundaries  in  a  deed,  more 
land  is  included  than  was  intended,  equity  will  not  reform 
the  boundaries,  after  the  land  has  passed  to  a  bond  fide  pur- 
chaser without  notice.^ 

37.  In  a  bill  to  reform  an  agreement,  on  account  of  mutual 
misapprehensions,  the  Court,  although  they  cannot  reform 
the  agreement,  will  afford  relief  by  causing  it  to  be  set  aside.* 

38.  A  bill  in  equity  to  reform  a  conveyance,  on  the  ground 
of  accident  or  mistake,  will  be  held  defective  on  demurrer, 
unless  the  persons  under  whom  the  defendant  claims  by^eeds 
of  warranty,  made  since  the  alleged  mistake  or  accident,  are 
made  parties ;  and  unless  an  allegation  is  contained  in  the 
bill,  that  the  grantees  in  such  deeds  purchased  with  notice  of 
the  mistake  or  accident.^ 

1  Craig  u.  Kittredge,  3  Foster,  231.     .       *  Bellows  w.  Stone,  14  N.  H.  175. 

2  Stedwell  v.  Anderson,  21  Conn.  139.         ^  Davis  v.  Rogers,  33  Maine,  222. 

3  Whitman  v.  Weston,  30  Maine,  285. 


CH.  XVIII.]  MISTAKE.  323 

39.  A  bill  to  correct  a  mistake  in  a  written  agreement 
must  not  only  state  the  agreement,  as  it  ought  to  have  been 
reduced  to  writing,  but  also  the  substance  of  tlie  written 
agreement  itself.  And  the  party  alleging  a  mistake  holds 
the  affirmative,  and  must  satisfy  the  Court,  beyond  all  rea- 
sonable doubt,  that  the  alleged  agreement  was  made,  and 
that  a  mistake  has  occurred  in  reducing  it  to  writing.^ 

40.  A  mistake  in  a  written  instrument  may  be  shown  by 
parol  proof.2  And  this,  as  well  on  the  part  of  the  plaintiff 
who  seeks  relief  or  a  reformation  of  the  writing,  and  to  have 
it  afterwards  enforced,  as  on  the  part  of  a  defendant  who 
resists  its  performance.^  So,  though  denied  in  the  answer.^ 
But  not  of  a  mistake  in  lawJ' 

41.  Evidence  offered  in  equity  to  reform  a  deed  need  not 
be  positive^  in  the  strictest  sense  of  that  term  ;  ^  but  it  must 
be  clear,  strong,  and  satisfactory.'^  Thus,  it  seems,  mere 
confessions  are  insufficient.^ 

1  Coles  V.  Brown,  10  Paige,  526.  ^  Greer  v.    Caldwell,   14   Geo.   207  ; 

2Rosevelt   v.  Fulton,   2  Cow.  129;  Goodell  u.  Field,  15  Verm.  576. 

Beard  v.  Hubble,  9  Gill,  420.  "  Beard  v.  Hubble,  9  Gill,  420 ;  Leas 

3  Bellows  V.  Stone,  14  N.  H.  175.  v.  Eidson,  9  Gratt.  277. 

*  Gillespie  v.  Moon,  2  Johns.  Ch.  585.  «  Gillespie  v.  Moon,  2  Johns.  Ch.  585. 
s  Wheatoa  v.  Wheatou,  9  Conn.  96. 


324 


LAW  OF  VENDOKS  AND  PURCHASERS.      [CH.  XIX. 


CHAPTER  XIX. 


GROUNDS  OF  AVOIDING  A  SALE. — FRAUD. 


1.  Misreprcsent.ition  avoids  a  sale. 

3.  WlictliLT  made  ipjiiorantly  or  in- 
tentionally ;  express  or  implied. 

10.  Under  what  circnmstanccs  the 
vendee  is  bound  by  a  fraudulent  sale  ; 
waiver  jinode  of  rescinding;  acceptance 
of  deed  ;  lapse  of  time,  &c. 


21.  Part-performance  and  compensa- 
tion. 

28.  Parties  ;  principal  and  agent,  &c. 
34.  Fraud  of  the  vendee. 
41.  Evidence,  damages,  &c. 


1.  It  has  been  seen  that  even  mistake  may  wholly  or  par- 
tially avoid  a  sale  and  purchase  of  real  property.  We 
proceed  now  to  consider  the  somewhat  analogous  subject  of 
fraud;  consisting  either  in  positive  misrepresentation,  or 
wilful  concealment ;  or  in  circumstances  of  personal  inca- 
pacity, or  terms  and  conditions  of  sale,  from  which  a  fraudu- 
lent purpose  may  be  inferred.  In  the  first  place,  actual 
misrepresentation  of  the  seller  avoids  the  sale.  Thus,  mis- 
representation, though  in  a  slight  degree,  is  an  objection  to 
a  specific  performance.^  As,  for  example,  misrepresentation 
of  the  value  of  an  estate.^  So  articles  may  be  set  aside  for 
fraud  and  imposition.^  So  a  vendor  cannot  maintain  a  bill 
for  specific  performance  of  a  sale  at  auction,  where  the  ven- 
dee was  induced  to  purchase  by  his  fraudulent  contrivance 
and  management.^  So  Equity  will  rescind  a  sale  at  the 
request  of  the  vendee,  and  restore  the  purchase-money,  in 
case  of  false  representations  by  the  vendor,  relative  to  his 
title  ;  and  the  whole  conduct  of  the  vendor  may  be  inquired 
into  relative  to  the  matter.^     So  specific  performance  was 


1  Cadman  v.  Horner,  18  Ves.  10. 

2  Wall  V.  Stubbs,  1  Madd.  80. 
^  Baugh  V.  Price,  1  Wils.  320. 


*  Rodman  v.  Zilley,  1  Saxt.  320. 
5  Smith  V.  Robertson,  23  Ala.  312. 


CH.  XIX.]  FRAUD.  325 

refused,  even  on  the  ground  of  representations  made  at  the 
sale  by  the  vendor,  of  improvements,  affecting  the  value  of 
the  premises,  intended  by  him,  which  were  not  carried  into 
effect.! 

2.  But  it  has  been  held,  that  it  is  not  every  representation 
of  the  vendor  in  regard  to  property  sold,  that  will  amount  to 
fraud,  be  it  ever  so  exceptionable  in  point  of  morals.'-^  So 
also,  that,  to  avoid  a  contract  for  misrepresentation,  it  must 
be  shown  that  the  other  party  intended  a  deception,  and  was 
successful  therein,  to  the  damage  of  the  party  defrauded.'^ 
Thus  specific  performance  was  decreed  against  a  purchaser, 
where  the  representation  in  the  particulars  of  sale,  (com- 
plained of  as  calculated  to  mislead,)  was  so  vague  and  in- 
definite, that  it  ought  to  have  put  the  purchaser  on  previous 
inquiry.* 

3.  The  doctrine,  however,  seems  to  be  now  well  estab- 
lished, that  actual  misrepresentation  avoids  the  sale,  even 
though  made  through  ignorance  of  the  seller  himself.  It  is 
said,  a  seller  is  bound  to  act  with  the  utmost  good  faith,  and, 
if  he  mislead  the  purchaser  by  a  false  or  mistaken  statement 
as  to  any  one  essential  circumstance,  the  sale  is  voidable.^ 
So  the  general  principle  may  be  gathered  from  the  authori- 
ties, that,  if  a  party  innocently  and  by  mistake  misrepresent 
a  material  fact,  affecting  the  value  of  the  property,  upon 
which  another  party  is  ignorantly  induced  to  act,  it  is  as 
conclusive  a  ground  for  relief  in  equity  as  a  wilful  and 
false  assertion.'^  So  it  is  said,  any  person  undertaking  to  de- 
scribe is  bound  by  the  description,,  whether  conusant  or  not.'^ 
Whether  with  a  fraudulent  design  or  innocently,  yet,  if  a 
false  impression  has  been  conveyed  and  made  the  basis  of  a 

1  Beaumont  v.  Dukes,  Jac.  Ch.  422.  Pile  v.  Shannon,  Hard.  55 ;  McFemn 

'^  Yeates  v.  Prior,  6  Eng.  58.  v.  Taylor,   3   Cranch,  270 ;    Woods  v. 

3  Pratt  V.  Philbrook,  33  Maine,  17.  Hall,  'l   Dev.  Eq.  411  j  Smith  v.  Bab- 

*  Trower  v.  Newcome,  3  Mer.  704.  cock,  2  Woodb.  &  M.  216  ;  Hough  v. 

^  Doggett  U.Emerson, 3  Storv,R. 659.  Richardson,  3    Story,    659;   Lewis    v. 

•*  Waters  v.  Muttingly,  1  Bibb,  244;  McLemore,  10  Yerg.  206.     See  Duck- 

Shackleford  v.  Handley,  1  A.  K.  Marsh,  enfield  v.  Whichcott,  Cha.  Cas.  Pt.  2,  24. 

370 ;  Bibb  v.  Poather,  &c.  Pr.  Dec.  153  ;  -  Calverley  v.  Williams,  1  Ves.  211. 

28 


326  LAW  OF  VENDOKS  AND  PURCHASERS.     [CH.  XIX. 

contract,  the  extraordinary  jurisdiction  of  the  Court  will  not 
be  exercised,  by  coercing  a  specific  performance.^  A  mis- 
representation in  a  matter  of  substance,  aflecting  the  value 
of  the  estate,  is  a  good  defence  to  a  suit  for  specific  perform- 
ance, although  the  vendor,  as  well  as  the  vendee,  was 
ignorant  of  its  untruth.  As  in  case  of  an  erroneous  state- 
ment, that  land  in  a  distant  State  was  situated  in  a  particu- 
lar county,  in  which  the  purchaser  desired  to  buy.^  So, 
where  a  purchaser  buys  on  faith  of  a  false  representation  by 
the  seller  touching  the  essence  of  the  contract,  the  sale  will 
be  set  aside  in  equity,  whether  the  misrepresentation  were 
the  result  of  fraud  or  mistake.^  So,  although  equity  will 
not  rescind  a  sale,  on  account  of  a  defect  in  the  title,  when 
a  conveyance  has  been  executed  and  accepted,  and  there  is 
no  fraud  or  misrepresentation  ;  yet  where  there  is  a  mis- 
representation of  a  material  fact,  which  was  believed  and 
acted  upon,  it  is  immaterial,  in  the  view  of  a  Court  of 
Equity,  whether  or  not  the  party  making  the  statement  knew 
it  to  be  false.*  So  a  trustee  was  charged  in  respect  of  a 
misrepresentation  to  a  purchaser  ;  he  having  notice,  and 
alleging  only  that  he  did  not  recollect  the  fact.^ 

4.  The  commissioners  of  a  town,  in  selling  the  lots,  in 
good  faith,  but  untruly,  represented,  "that  there  was  along 
the  whole  extent  of  the  town  a  first-rate  steamboat  landing 
all  seasons  of  the  year ;  that  the  landing  was  one  of  the 
safest  and  best  on  the  Mississippi ;  that  on  the  west  side  of 
the  river,  immediately  opposite  the  town,  there  was  more 
elevated  ground  than  was  to  be  found  on  that  side  of  the 
river,  and  that  the  nearest  and  best  road  could  be  made  from 
that  point  to  Little  Rock."  Held,  the  representations  were 
material,  and  the  purchasers,  having  bought  under  a  suppo- 
sition that  they  were  true,  were  entitled  to  rehef.^ 

5.  Bill,  originally  brought  in  New  York,  to  rescind  a  con- 

1  Gurley  v.   Hitcsliue,    5  Gill,  217  ;        '^  Doggett   v.   Emerson,  3-  Story,  R, 
Young  V.  Frost,  5  Gill,  287,  313  ;  Chit.     659. 
on  Contr.  302,  n.  *  Lanier  v.  Hill,  2.5  Ala.  554. 

-  Best  V.  Stow,  2  Sandf.  298.  ^  Burrowes  v.  Locke,  10  Ves.  470. 

6  Lewis  V.  McLemore,  10  Yerg.  206. 


CH.  XIX.]  FRAUD.  327 

tract  for  the  purchase  and  sale  of  land  in  Virginia,  on  which 
there  was  a  gold  mine,  alleging  fraudulent  misrepresentations 
as  to  the  mine,  and  other  arts  of  the  seller,  by  which  the 
purchaser  was  induced  to  buy.  Decree  for  the  plaintiff.  In 
this  case,  (a  leading  one  upon  the  subject,)  tlie  Supreme 
Court  of  the  United  States  remarked,  in  substance,  as  fol- 
lows :  It  is  an  ancient  and  well-established  principle,  that 
whenever  suppressio  veri  or  suggestio  falsi  occurs,  and  more 
especially  both  together,  they  afford  sufficient  ground  to  set 
aside  any  release  or  conveyance.  The  party  selling  property 
must  be  presumed  to  know  whether  the  representation  which 
he  makes  of  it  is  true  or  false.  If  he  knows  it  to  be  false, 
that  is  firaud  of  the  most  positive  kind ;  but  if  he  does  not 
know  it,  then  it  can  only  be  from  gross  negligence ;  and, 
in  contemplation  of  a  Court  of  Equity,  a  representation 
founded  on  a  mistake  resulting  from  such  negligence  is  fraud. 
The  purchaser  confides  in  it  upon  the  assumption  that  the 
owner  knows  his  own  property,  and  truly  represents  it. 
And  it  is  immaterial  to  the  purchaser  whether  the  misrepre- 
sentation proceeded  from  mistake  or  fraud.  The  injury  to 
him  is  the  same,  whatever  may  have  been  the  motives  of 
the  seller.  The  misrepresentations  of  the  seller  of  property, 
to  authorize  the  rescinding  a  contract  of  sale  by  a  Court  of 
Equity,  must  be  of  something  material,  constituting  an  in- 
(Jucement  or  motive  to  purchase ;  and  by  which  he  has  been 
misled  to  his  injury.  It  must  be  in  something  in  which  the 
one  party  places  a  known  trust  and  confidence  in  the  other. 
Whenever  a  sale  is  made  of  property  not  present,  but  at  a 
remote  distance,  which  the  seller  knows  the  purchaser  has 
not  seen,  but  which  he  buys  upon  the  representation  of  the 
seller,  relying  on  its  truth,  then  the  representation  in  effect 
amounts  to  a  warranty  ;  at  least  the  seller  is  bound  to  make 
good  the  representation.^ 

6.  Any  apparent  discrepancy  in  the  authorities  upon  this 
subject  may  be  to  some  extent  reconciled  by  the  considera- 

1  Smith  V.  Kichards,  13  Pet.  26. 


328  LAW    OF   VENDORS   AND    PURCHASERS.  [CH.  XIX 

tion,  that,  although  the  law  does  not  make  the  vendor  respon- 
sible for  every  unauthorized,  erroneous,  or  false  representation 
made  to  the  vendee,  even  though  it  may  have  been  injurious, 
unless  also  fraudulent ;  yet,  where  one  has  made  a  represen- 
tation positively,  or  professing  to  speak  as  of  his  own  knowl- 
edge, without  having  any  knowledge  on  the  subject,  the 
intentional  falsehood  is  disclosed,  and  the  intention  to  de- 
ceive is  also  inferred.^  (a) 

7.  Upon  the  ground  above  stated,  it  has  been  held,  that 
on  a  bill  filed  by  a  vendee  for  rescission  of  the  contract, 
alleging  a  fraudulent  misrepresentation  of  a  material  fact  by 
the  vendor ;  if  the  evidence  shows  an  honest  mistake  only, 
the  intent  being  immaterial,  the  variance  is  not  fatal,  and 
relief  will  be  granted.^ 

8.  Where,  in  a  treaty  for  the  sale  of  property,  the  vendor 
makes  material  misrepresentations,  even  though  through 
mistake,  by  which  the  purchaser,  having  no  knowledge  or 
means  of  knowledge  in  relation  thereto,  is  actually  deceived 
to  his  injury,  equity  will  rescind  the  contract,  although  it 
do  not  itself  contain  the  misrepresentations.^  So,  misrepre- 
sentations on  a  plat  of  lands,  produced  at  the  time  and  place 
of  a  public  sale,  are  good  grounds  for  rescission.  As  where 
a  fine  stream  of  water  was  laid  down,  with  a  good  mill-seat 
on  it,  in  the  centre  of  a  tract  of  timber  land,  fit  only  for 
lumber;  and  which,  upon  examination,  turned  out  to  be  only 
a  dry  gully  three  fourths  of  the  year,  without  any  running 
water  in  it.  And  such  misrepresentation  may  be  given  in 
evidence  against  a  bond  given  for  the  consideration-money, 

1  Hammatt  v.  Emerson,  27  Maine,  ^  Hough  v.  Richardson,  3  Story,  K. 
308.  659. 

^  Lanier  v.  Hill,  25  Ala.  554. 

(a)  It  has  been  held,  however,  that  an  agreement,  containing  a  guaranty, 
that  there  is  a  certain  quantity  of  timber  upon  a  tract  of  land,  does  not 
necessarily  include  the  idea,  or  authorize  the  inference,  that  the  person 
making  it  knows  the  fact  to  be,  as  the  guaranty  stipulates  that  it  shall  be, 
for  the  foundation  upon  which  business  is  to  be  transacted.  Hammatt  v. 
Emerson,  27  Maine,  308. 


CH.  XIX.]  FRAUD.  329 

by  way  of  discount,  under  the  terms  of  a  discount  act,  in  a 
Court  of  Common  Law.^ 

9.  Upon  similar  grounds,  a  compromise  of  rights,  doubtful 
in  point  of  law,  but  founded  upon  a  misrepresentation  or 
suppression  of  facts  in  the  knowledge  of  one  of  the  parties 
only,  cannot  be  supported.  Therefore  a  deed  of  compromise, 
induced  by  the  opinion  of  counsel,  upon  a  case  laid  before 
him,  which  was  prepared  by  the  defendant's  agent,  but  mis- 
taking the  tenures  under  which  the  estates,  the  subject  of 
the  compromise,  were  held,  was  set  aside.-  So,  where  one 
having  a  clear  title  to  £12  for  rent,  and  claiming  the  prop- 
erty of  the  land,  is  induced,  by  the  representations  of  two 
professional  persons,  that  he  had  no  right  to  either  rent  or 
land,  to  agree  to  accept  £10  in  full  for  rent  and  land;  the 
Com't  will  not  entertain  a  biU  for  specific  performance.^  So, 
if  one  having  the  fee-simple  be  induced  by  fraud  to  accept  a 
chattel  interest,  equity  will  control  the  setting  up  of  the 
leasC^ 

10.  The  important  qualification  to  the  general  doctrine 
upon  this  subject  requires  to  be  stated,  that  Chancery  will 
grant  relief,  where  the  vendor  of  real  estate,  by  false  and 
fraudulent  representations  respecting  its  quality,  induces  an- 
other to  purchase  it,  if  the  purchaser  is  not  in  a  situation  to 
discern  the  defect  by  ordinary  diligence,  provided  there  is 
no  adequate  remedy  at  law.^  But  where  a  purchaser  re- 
lies upon  his  own  judgment,  uninfluenced  by  any  misrep- 
resentations, and  has  full  means  of  knowledge  within  his 
reach,  equity  will  not  relieve  him.*'  So,  to  authorize  a  ven- 
dee to  refuse  to  comply  with  the  terms  of  sale,  on  account 
of  a  misrepresentation  made  by  the  vendor,  the  misrepresen- 
tation must  be  in  a  matter  important  to  the  purchaser's 
interest,  by  which  he  is  actually  misled.     And  if  he  knows 


1  The  State  v.  Gaillard,  2  Bay,  11.  *  Saunders  v.  Annesley,  2   Scho.   & 

2  Leonardv.  Leonard,  2  Ball  &Beatt.  Lef.  101. 

171.  ^  Sherwood  v.  Salmon,  5  Day,  439. 

3  Stanley  v.   Robinson,   1   Euss.   &        ^  Hough  v.  Richardson,  3  Story,  R. 
Myl.  527.  659. 

28* 


330  LAW  OF  VENDORS  AND  PURCUASERS.     [CH.  XIX. 

the  representation  is  false,  it  cannot  be  said  to  influence  his 
conduct,  and  he  has  no  right  to  complain  of  any  one  but 
himself.^  So  a  sale,  though  founded  on  the  misrepresenta- 
tions of  the  seller,  cannot  be  for  that  cause  wholly  re- 
scinded, if,  prior  to  the  completion  of  the  sale,  the  purchaser 
had  become  acquainted  with  the  whole  facts,  and  yet  con- 
firmed the  bargain.^  So  the  misrepresentation,  to  affect  the 
validity  of  the  contract,  must  relate  to  some  matter  of  in- 
ducement to  the  making  of  it,  in  which,  from  the  relative 
position  of  the  parties,  and  their  means  of  information,  the 
one  must  necessarily  be  presumed  to  act  on  the  faith  and 
trust  which  he  reposes  in  the  representations  of  the  other, 
on  account  of  his  superior  information  and  knowledge  in 
regard  to  the  subject  of  the  contract.^  Thus,  where  the 
parties  are  present  at  the  property  sold,  the  assertions  of  the 
vendor  as  to  its  value  and  prospective  profits,  where  there  is 
no  misrepresentation  of  facts,  afford  no  ground  for  setting 
aside  the  contract.*  So  the  parties  to  a  sale  went  upon  the 
land,  saw  the  location  of  the  various  parcels,  and  had  plats 
of  the  land  before  them,  but  the  vendor  represented  that  one 
parcel  was  situated  within  certain  lines  of  a  survey,  which 
was  not  so  situated.  Held,  that  the  question,  whether  that 
representation  was  fraudulent  or  not,  should  be  left  to  the 
jury,  and  that  the  vendor  must  use  means  which  would  im- 
pose upon  a  person  of  ordinary  prudence,  to  constitute  fraud, 
and  the  vendee  must  place  confidence  therein  and  receive 
damage.^  So  it  is  held,  that,  in  a  case  of  alleged  misrepre- 
sentation of  value,  there  cannot  be  a  more  effectual  bar  to 
the  plaintiff,  than  by  showing  that  he  was  from  the  begin- 
ning cognizant  of  all  the  matters  complained  of,  or,  after  fuU 
information  of  them,  continued  to  deal  with  the  property.^ 
So,  where  a  vendee,  with  notice  of  the  vendor's  violation  of, 
or  inability  to  comply  with,  the  contract,  negotiates  or  further 

1  Ely  V.  Stewart,  2  Md.  408.  «  Griffith  v.  Eby,  12  Mis.  517. 

2  Pratt  V.  Philbrook,  33  Maine,  17.  «  Vigers  v.  Pike,  8  Cla.  &  Fin.  650, 

3  Yeates  v.  Prior,  6  Eng.  58.  651. 
*  Hutchinson  v.   Brown,   1    Clarke, 

408. 


CH.  XIX.]  FRAUD.  331 

contracts  with  him,  he  cannot  afterwards  abandon  the  pur- 
chase for  any  cause  then  known  to  him.'  So,  where  A.  gave 
a  certificate  that  certain  lands,  which  he  had  "  partially  ex- 
plored," contained,  "  as  far  as  my  knowledge  extends,"  a  cer- 
tain average  of  timber,  and  it  appeared  that  the  purchasers,  to 
whom  it  was  given,  had  as  full  means  of  knowledge  as  A. ; 
held,  they  were  not  entitled  to  place  implicit  reliance  thereon 
and  make  it  the  basis  of  their  contract,  but  should  have  in- 
vestigated the  grounds  of  the  opinion,  and  the  extent  of  the 
exploration.^ 

11.  A.  sold  to  B.,  who  was  just  moving  into  the  State,  a 
tract  of  land  on  the  bank  of  the  Mississippi,  representing  it 
to  be  above  overflow  ;  and  also  representing,  that  there  were 
pubHc  lands  back  and  adjacent  to  it,  subject  to  entry  with 
donation  claims,  held  by  B.,  which  were  likewise  above  over- 
flow, when,  in  fact,  a  larger  portion  of  both  the  front  and 
back  lands  were  subject  to  ordinary  overflow.  Held,  such 
misrepresentations  were  fraudulent,  and  constituted  sufficient 
grounds  for  rescinding  the  contract ;  but,  B.  having  had  an 
opportunity  of  ascertaining  the  true  character  of  the  lands, 
in  a  short  time  after  making  the  contract,  and  having  failed 
for  some  two  years,  of  his  determination  to  abandon  the 
purchase,  that  he  waived  the  fraud  and  confirmed  the  con- 
tract.3 

12.  Where  a  purchaser  of  shares  in  a  mine  had  not  relied 
upon  the  representations  of  the  vendor  as  to  the  value  of 
the  mine,  but  had  himself  inspected  it ;  held,  as  there  was 
no  proof  that  the  representations  made  by  the  defendants 
were  untrue  assertions,  which,  if  taken  as  true,  would  have 
added  to  the  value,  nor  that  these  representations  were  not 
merely  conjectural,  the  plaintiff"  was  not  entitled  to  relief  in 
equity,  but  that  his  bill  must  be  dismissed,  without  prejudice 
to  any  action  he  might  be  advised  to  bring.^ 

13.  A.  agreed  with  P.,  in  consideration  of  £165,000,  to 

'  Griggs  V.  Woodruff,  14  Ala.  9.  '^  Yeates  v.  Prior,  6  Eng.  58. 

2  Hough  t.  Richardson,  3  Story,  R.  *  Jennings  v.  Broughton,  27  Eng.  L. 
657.  &Eq.  397. 


332  LAW    OF   VENDOKS   AND    PURCHASERS.  [CH.  XIX. 

grant  to  P.  a  lease  of  certain  mines,  as  trustee  for  a  joint- 
stock  company,  which  P.  undertook  to  form ;  the  considera- 
tion to  be  paid  partly  in  shares  in  the  company,  partly  in 
money  to  be  raised  by  calls  on  the  remaining  shares.  The 
lease  was  afterwards  executed ;  and  the  company,  having 
been  formed,  with  power  to  sue  and  be  sued  by  one  of  the 
directors,  entered  into  possession  and  worked  the  mines, 
and  paid  part  of  the  purchase-money.  Upon  A.'s  death,  P., 
his  executor,  filed  a  bill  against  V.,  then  managing  director 
of  the  company,  for  an  account  and  payment  of  what  re- 
mained due  to  A.  of  the  purchase-money.  V.  answered, 
and  then  filed  a  cross-bill  on  behalf  of  the  company,  setting 
forth  various  matters  as  evidence  of  misrepresentations,  con- 
cealment, and  other  frauds  practised  by  A.  and  P.  on  the 
company,  and  prayed  that  the  consideration  might  be  de- 
clared exorbitant  and  fraudulent,  and  that  the  company  was 
entitled  to  a  valid  lease  of  the  mines  at  their  true  reduced 
value  ;  or  that  the  agreement  might  be  declared  fraudulent 
and  void,  and  the  company  discharged  therefrom,  and  enti- 
tled to  a  lien  on  A.'s  estates  for  the  payments  made  to  him. 
Held,  1st.  That  the  company  were  not  entitled  to  any  relief 
from  the  agreement,  by  reason  of  acts  and  misrepresentations 
which  proceeded  from  themselves,  or  were  adopted  by  thern 
and  acquiesced  in  after  full  knowledge,  while  they  continued 
to  work  and  exhaust  the  mines.  2d.  That  as  the  executed 
contract  was  not  to  be  set  aside,  A.'s  executor  was  entitled, 
as  matter  of  course,  to  the  account  and  payment  prayed  by 
his  bill.i 

14.  But  where  a  purchaser  of  timber  land  seeks  to  rescind 
the  contract  for  fraud,  on  the  ground  of  falsehood  as  to  the 
quantity  of  timber  on  the  township ;  although  he  makes  an 
examination  of  the  land  before  the  purchase ;  still,  if  he  con- 
fides as  to  the  details  in  the  false  statements  of  the  person 
negotiating  with  him,  and  his  agents,  he  is  not  precluded 
from  rescinding  the  sale  ;  more  especially  if  there  was  false- 

1  Vigers  v.  Pike,  8  Clark  &  Fin.  562. 


CH.  XIX.]  FRAUD.  333 

hood  as  to  other  material  matters  in  the  trade,  not  offered 
to  be  examined.' 

15.  A  sale  procured  by  fraud  and  misrepresentation  of  the 
vendee  is  not  absolutely  void,  but  only  voidable,  at  the 
option  of  the  vendor ;  which  must  be  exercised  as  soon  as 
the  fraud  is  discovered,  or  in  reasonable  time  thereafter.  If 
he  would  rescind  the  contract,  he  must  restore,  or  offer  to 
restore,  whatever  he  has  received  under  it,  in  substantially 
the  same  condition  in  which  it  was  received ;  he  cannot 
rescind  in  part  and  affirm  as  to  the  residue.  Producing  at 
the  trial,  and  offering  to  cancel,  the  notes  received  in  part 
payment  of  the  purchase-money,  is  not  sufficient.^  A  deed 
of  quitclaim,  made  six  months  after  the  purchase,  was  held 
within  a  reasonable  time ;  it  not  appearing  that  the  fraud 
was  sooner  discovered.  So  where  such  a  deed  was  left  with 
tiie  clerk  of  the  Court,  in  which  an  action  on  the  note  given 
for  the  estate  was  pending,  with  notice  to  the  vendor ;  held, 
a  sufficient  restoration  of  the  property.^  So  where  the  ven- 
dee, in  an  executory  contract  for  the  sale  of  land,  goes  into 
and  remains  in  possession,  he  does  not  thereby  waive  ob- 
jection to  the  title  ;  other  circumstances  must  exist,  such 
as  to  show  that  he  knew  of  its  defects,  and  intended  to 
accept  such  title  as  could  be  made,  relying,  in  case  of  its 
failure,  upon  the  covenants  of  warranty,  for  redress.^ 

16.  Although,  in  general,  a  parol  contract  is  merged  in  the 
deed  by  which  such  contract  is  perfected,  yet  an  action  for 
fraud  in  the  sale  of  lands  will  lie  against  the  grantor  and 
others,  notwithstanding  the  covenants  of  seizin  in  the  deed.^ 
So,  although  the  acceptance  of  a  deed,  in  pursuance  of  arti- 
cles of  agreement,  is  prima  facie  and^generally  an  extin- 
guishment of  the  agreement ;  yet,  if  the  vendor  fraudulently 
induce  the  vendee  to  accept  a  deed,  by  making  him  believe 

1  TuthilU'.  Babcock,  2  Woodb.  &  M.  ^  Concord  Bank  v.  Gregg,  14  N.  H. 
298.  331. 

2  The  Matteawaa,  &c.  v.  Bentley,  12  *  Jones  v.  Taylor,  7  Texas.  240. 
Barb.  641.  ^  Bostwick  v.  Lewis.  1  Da}',  33,  250 ; 

Norton  v.  Hathaway,  lb.  255. 


334  LAW    OF   VENDORS   AND    PURCnASERS.  [cil.  XIX. 

that  the  whole  of  the  land  contracted  for  is  included  in  it, 
the  agreement  is  not  merged,  and  the  vendee  may  maintain 
an  action  upon  it.  So,  although  he  has  paid  the  full  amount 
of  the  consideration-money  to  the  vendor.  So  he  may  main- 
tain assumpsit  for  non-performance  of  the  contract,  and  is 
not  obliged  to  bring  an  action  for  deceit ;  nor  would  an 
action  of  covenant  be  proper.^ 

17.  It  has  been  seen  in  previous  chapters,  that  a  partial 
loss  of  the  property  purchased,  or  failure  of  title  thereto, 
arising  merely  from  mistake,  does  not  generally  furnish 
ground  for  rescinding  the  sale,  but  only  for  compensation. 
A  different  rule  prevails,  however,  in  case  of  fraud ;  it  being 
well  established,  that  a  party  obtaining  an  agreement  by  a 
partial  misrepresentation  is  not  entitled  to  specific  perform- 
ance, on  waiving  the  part  affected  by  such  misrepresenta- 
tion. The  effect  is,  not  to  alter  or  modify  the  agreement  7?ro 
tanto,  but  to  destroy  it  entirely,  and  to  operate  as  a  personal 
bar  to  the  party  who  has  practised  it.^  Thus  the  maxim, 
caveat  emptor,  is  not  to  be  applied,  so  as  to  protect  the 
vendor  in  knowingly  defrauding  the  vendee,  as  to  the  quan- 
tity of  the  land  sold.^  So,  even  where  a  party  has  been 
induced  to  purchase  land  by  the  unintentional  misrepresenta- 
tions of  the  seller  as  to  the  quantity  included  within  the 
boundaries,  the  deficiency  being  material,  equity  will  rescind 
the  contract ;  and  this,  though  the  complaint  seeks  relief 
upon  the  ground  that  the  representations  were  fraudulently 
made,  if  the  answer  admits  a  mistake  as  to  the  quantity.^ 
So  where  the  quantity  of  land  is  fraudulently  misrepresented 
by*the  vendor,  the  contract  is  not  obligatory  on  the  vendee, 
though  the  land  be^sold  in  gross  or  by  certain  boundaries  ; 
and,  in  an  action  to  rescind  the  contract,  it  is  error  to  reject 
evidence  of  the  actual  quantity  of  the  land ;  the  deficiency 
in  quantity  being  the  basis  of  the  right  to  introduce  evidence 

1  Lee  V.  Dean,  3  Whart.  316.  ^  Pringle  v.  Samuel,  1  Litt.  44. 

'^  Clermont  v.  Tasburgh,    1   Jac.  &        *  Belkmip  v.  Sealey,  2  Duer,  570. 
Walk.  112. 


cii.  xrx.]  FRAUD.  335 

touching  the  representations  of  the  defendant,  concerning 
the  quantity  of  land,  and  such  other  circumstances  as  tended 
to  give  character  to  the  transaction.^  And  the  fact  that  the 
deficiency  was  small  is  no  bar  to  relief,  if  it  bears  a  consid- 
erable proportion  to  the  whole  tract.^ 

18.  Purchase  of  land  on  the  representation  that  it  was 
only  overflowed  from  the  backwater  of  a  certain  bayou.  It 
was  proved  that  it  did  overflow  generally,  that  the  owner 
knew  it,  and  that  it  diminished  its  value.  Held,  a  fraud, 
and  the  contract  was  rescinded.^  So  a  sale  of  the  fixtures 
and  fittings  of  a  public-house  was  held  to  be  avoided,  by  a 
false  representation  of  the  vendor  as  to  the  amount  of  busi- 
ness attached  to  the  house,  though  the  agreement  expressly 
excluded  the  good  willJ^  So  a  misrepresentation  by  a  vendor 
of  a  saltpetre  cave  of  the  quantity  of  saltpetre,  which  a 
given  quantity  of  nitrous  earth  will  produce,  authorizes  a 
rescission  of  the  contract ;  even  though  the  purchaser  em- 
ployed a  person  in  w^hom  he  had  confidence,  to  examine  the 
cave  for  him  after  the  representation  was  made,  and  he  made 
a  favorable  report.^ 

19.  The  plaintiff"  purchased  of  the  defendant  a  tract  of 
land  on  the  Ohio  River,  the  latter  representing  and  believing 
that  it  contained  a  valuable  coal  mine  ;  and,  besides  paying 
$4,400,  covenanted  for  an  annuity  of  $1,000  for  20  years; 
which  was  to  cease  if,  after  the  mine  was  faithfully  worked, 
it  should  not  yield  a  certain  quantity  of  coal.  The  land 
was  accordingly  conveyed,  but  proved  not  to  contain  such  a 
coal  mine,  as  was  represented.  A  perpetual  injunction  was 
granted  to  restrain  the  defendant  from  prosecuting  at  law 
for  the  annuity.  It  was  also  held,  that,  as  there  was  no  such 
coal  mine  in  the  land  as  was  represented,  the  plaintiff  need 
not  work  the  mine  in  order  to  discover  the  quantity  of  coal.^ 

20.  So  a  misrepresentation   by  the  vendor  of  an  occult 

'  Hatch  V.  Garza,  7  Texas,  60.  *  Plutcliinson  v.  Morley,  7  Scott,  341. 

2  Pring'le  v.  Samuel,  1  Litt.  44.  ^  Perkins  v.  Rice,  Litt.  Sel.  Cas.  218. 

3  Alexander  v.  Beresford,   27  Miss.  "  Kosevelt  v.  Fulton,  2  Cow.  129. 
747. 


836  LAW    OF   VENDORS   AND    PURCHASERS.  [CU,  XIX. 

quality  in  the  land,  although  made  ignorantly,  and  although 
the  vendee  agrees  to  run  the  risk  in  this  respect,  has  been 
held  to  bar  an  action  for  specific  performance.^ 

21.  But,  on  the  other  hand,  when  a  misrepresentation  as 
to  the  quantity  of  land  agreed  to  be  conveyed  is  made, 
though  innocently,  it  is  the  right  of  the  purchaser,  if  he  does 
not  abandon  the  contract,  to  have  what  the  vendor  can  con- 
vey, with  an  abatement  of  a  proportionate  amount  of  the 
purchase-money.''^  So,  where  an  agent  of  a  vendor,  by  mis- 
representing a  material  fact,  of  which  the  vendee  had  not 
the  means  of  obtaining  correct  information,  induced  the 
vendee  to  make  the  purchase  ;  in  an  action  against  the 
vendee,  on  the  articles  -of  agreement,  which  had  been  in 
part  complied  with  on  his  part,  it  was  held,  that  he  was 
entitled  to  have  deducted,  from  the  sum  claimed  in  the 
action,  the  difference  between  the  value  of  what  he  received 
and  what  he  thought  he  was  purchasing.-^  So,  whenever  it 
appears  that  the  vendor's  own  title-deeds  must  have  dis- 
closed to  him  the  true  quantity  of  land,  he  is  bound  to  make 
compensation  for  a  deficiency,  though  his  deed  to  the  vendee 
express  a  quantity  "  more  or  less."  ^ 

22.  But  it  is  doubted,  whether  a  bill  filed  for  compensa- 
tion singly,  without  other  relief,  can  be  maintained,  for  the 
difference  between  the  value  of  an  estate  sold  and  conveyed 
and  the  purchase-money  paid,  on  the  ground  of  fraud.  The 
jurisdiction  of  equity  in  cases  of  compensation  is  said  to 
be  only  incidental  and  ancillary  to  that  of  giving  relief,  by 
enforcing  the  performance  of  contracts  for  the  sale  of  real 
property.  The  remedy  in  such  cases  is  at  law,  by  an  action 
for  damages.^ 

23.  With  regard  to  the  •party  who  is  responsible  for  a 
fraudulent  representation  in  the  sale  of  land ;  it  is  held  that, 
upon  a  proceeding  in  equity  to  set  aside  such  sale,  the  per- 
son most  benefited  by  it  is  in  a  situation  to  be  suspected  of 

1  Fisher  v.  Worrall,  5  W.  &  S.  478.  '''Duvals  v.  Ross,  2  Munf.  290. 

2  Walling  V.  Kinnard,  10  Tex.  508.  *  Newham  v.  May,  13  Price,  749. 
*  Pennock  v.  Tilford,  17  Penn.  456. 


CH.  XIX.]  FRAUD.  337 

the  fraud.  Therefore,  if  such  a  person  makes  false  statements 
as  to  material  matters  connected  with  the  value  of  the  land, 
and  which,  from  being  more  within  his  private  knowledge, 
or  other  circumstances,  were  clearly  relied  on  in  the  pur- 
chase, the  sale  is  void,  whether  he  believes  them  to  be  true 
or  not.  And,  in  a  bill  against  such  party  and  another,  it  is 
no  objection  to  rescinding  the  contract,  that  another  remedy 
on  a  guaranty  may  exist  against  the  person  alone,  now  be- 
come insolvent,  but  not  against  the  other  respondent ;  or 
that  the  complainant  had  an  opportunity  to  examine  the 
land,  and  one  of  his  friends  did  examine  it,  some  time  before 
the  bargain  was  completed ;  if  the  false  representations  were 
relied  on  as  to  details,  and  others,  hired  by  him  unknown  to 
the  examiner,  were  uniting  in  statements  and  acts  likely  to 
mislead ;  and  more  especially  if  the  misrepresentations  ex- 
tended also  to  other  matters  than  the  timber  on  the  land, 
which  were  material,  and  were  not  attempted  nor  offered  to 
be  examined.^ 

24.  The  vendor  is  responsible  for  the  misrepresentation  of 
his  authorized  agent.  Thus  the  purchase  of  an  estate  was 
rescinded  at  the  suit  of  the  purchaser,  on  the  ground  of 
fraudulent  misrepresentation ;  the  contract  having  been  com- 
pleted with  the  knowledge,  on  the  part  of  the  defendant,  or 
her  agent,  of  a  public  right  of  way  over  the  property,  and 
the  plaintiff  not  knowing,  nor  having  the  means  of  knowing 
that  fact.2 

25.  Defendant,  being  owner  of  a  house,  employed  an 
agent  to  sell  it.  The  agent  described  it  as  free  from  rates 
and  taxes,  and  did  not  know  it  to  be  otherwise ;  but  it  was 
in  fact  liable  to  certain  rates  and  taxes,  as  the  defendant 
knew.  On  the  faith  of  the  agent's  description,  the  plaintiff 
bought  the  house.  Held,  the  plaintiff  might  maintain  an 
action  on  the  case  for  deceit  against  the  defendant ;  though 

1  Smith  u.  Babcock,  2  Woodb.  &  M.  2  Gibson  v.  D'Este,  2  You.  &  Coll. 
216.  C.  C.  542. 

29 


338  LAW   OF  VENDORS   AND   PURCHASERS.  [CII.  XIX. 

• 
it  did  not  appear  that  the  defendant  had  instructed  the  agent 

to  make  any  representation  as  to  rates  or  taxes.^ 

26.  A.  and  B.  gave  a  bond  to  C,  conditioned  to  convey 
certain  timber  land,  provided  C.  should  elect  to  buy  the  same 
on  certain  terms  within  thirty  days,  or  make  sale  thereof 
within  the  same  time  ;  in  which  case,  only  one  half  of  the 
excess  over  a  certain  price  was  to  be  paid  to  A.  and  B.  C. 
did  make  sale  of  the  land,  and  A.  and  B.  received  one  half 
of  the  excess  of  the  price  over  the  stated  sum,  and  made  a 
deed  thereof  to  the  purchaser.  Held,  C.  was  the  agent  of 
A.  and  B.  in  the  sale,  and  they  were  bound  by  his  represen- 
tations.''^ 

27.  Where  a  sale  made  by  an  agent  is  ratified  by  his 
principals,  his  representations,  made  at  the  time  of  the  sale, 
bind  them.  Thus,  a  paper  was  executed  by  A.  as  agent 
of  the  defendant  to  D.,  giving  D.  the  refusal  of  certain 
timber  lands  for  a  certain  time  at  a  certain  price.  D.  subse- 
quently sold  the  land  to  the  plaintiff,  and  the  deed  was  made 
by  A.  The  plaintiff  brings  an  action  against  A.  and  his 
principals,  to  set  aside  the  sale,  on  account  of  fraudulent 
misrepresentations  by  D.  Held,  the  circumstances  created  a 
legal  presumption  that  D.  was  acting  as  agent  of  A.  and  his 
principals,  and  that,  as  A.,  by  his  conduct,  subsequently 
ratified  the  sale,  he  and  his  principals  were  responsible  for 
all  D.'s  misrepresentations  made  at  the  sale,  whether  D. 
exceeded  his  authority  or  not,  inasmuch  as  they  could  not 
ratify  a  portion  of  the  transaction  and  reject  the  rest.^ 

28.  If  a  sub-agent  receives  from  the  vendee  a  part  of  the 
purchase-money,  and  pays  it  over  to  the  principal,  taking 
land  instead  of  it  for  his  compensation,  the  principal  is  liable 
(on  a  rescission  of  the  purchase  for  fraud)  to  repay  that 
part,  as  well  as  what  he  received  directly.^  (a) 

1  Fuller  V.  Wilson,  3  Ad.  &  Ell.  N.  ^  Doggett  v.  Emerson,  3  Story,  R. 
S.  68.  659. 

2  Hough  V.  Richardson,  3  Story,  R.  *  Doggett  v.  Emerson,  1  Woodb.  & 
659.  M.  195,  206. 

(a)  The  following  recent  case,  founded  equally  upon  mutual  mistake  and 


CH.  XIX.]  FRAUD.  839 

29.  A  sale  of  lands  may  be  avoided  for  the  misrepresenta- 
tion of  the  vendee  as  well  as  the  vendor.  Thus,  if  A.  articles 
for  the  purchase  of  B.'s  estate,  pretending  he  bought  it  for 
one,  whom  B.  was  desirous  to  oblige,  but  in  truth  bought  it 
for  another,  and  by  that  means  got  the  estate  at  an  under- 
value ;  equity  will  not  decree  an  execution  of  these  ar- 
ticles.^ (a) 

1  Phillips  V.  Bucks,  1  Vern.  227. 

actual  misrepresentation  on  tlae  part  of  the  vendor,  and  at  the  same  time 
Involving  the  mutual  rights  and  obligations  of  princijjal  and  agent,  may 
properly  be  cited  in  this  connection. 

A  contract  was  made  by  certain  parties,  that  one  should  sell  and  the 
other  purchase  a  tract  of  timber  land  in  Maine,  and  if,  upon  an  exploration, 
it  did  not  contain  sixty  millions  of  pine  timber,  and  there  was  not  a  stream 
running  through  it,  which  would,  with  an  ordinary  freshet,  carry  logs  from 
the  tract  to  the  Kennebec  Eiver,  without  difficulty,  the  agreement  should 
be  void.  The  parties  procured  an  exploration,  and,  upon  a  favorable  report 
of  their  agent,  purchased  the  tract,  taking  a  deed,  and  making  the  stipulated 
payments.  It  subsequently  appeared  that  there  was  a  gross  mistake  in  the 
estimation  of  the  quantity  of  timber,  that  the  exploration  was  not  made 
entirely  upon  the  tract  in  question,  but  partly  upon  an  adjacent  one,  and 
that  the  pine  timber  did  not  exceed  Jive  millions.  Upon  a  bill  in  equity, 
brought  by  one  of  the  purchasers  to  rescind  the  contract,  and  praying  for 
general  relief:  Held,  1.  That  the  original  contract  must  be  set  aside,  as 
founded  in  gross  mistake.  2.  That  the  conveyance  to  the  plaintiff  must  be 
rescinded,  and  the  purchase-money  restored.  3.  That  the  agent  of  the 
owners,  who  had  effected  thdfcale  in  his  own  name,  having  received  the 
purchase-money,  was  pi'imai-ily  liable  to  repay  it ;  and  in  his  aid,  those  of 
the  other  defendants  for  whom  he  had  acted  as  agent,  and  who  had  received 
any  part  thereof,  with  a  full  knowledge  of  all  the  circumstances,  must  repay 
the  proportions  thereof  respectively  received  by  them. 

A  mutual  agreement  having  been  made  between  the  defendants,  upon 
the  division  among  them  of  the  notes  taken  for  the  purchase-money,  accord- 
ing to  their  respective  interests,  that  they  would  bear  £heir  respective  pro- 
portions of  any  losses  which  might  arise  from  inability  of  the  purchasers  to 
pay  the  same;  held,  the  plaintiff  could  not,  in  equity,  have  any  benefit 
from  this  agreement,  in  case  he  was  not  able,  from  the  parties  directly  liable 
to  him,  to  obtain  back  the  purchase-money  decreed  to  him.  Daniel  v. 
Mitchell,  1  Story,  E.  172. 

(a)  But  if  A.  in  contracting  with  B.  falsely  represents  himself  to  be  the 
agent  of  C,  and  thereby  obtains  better  terms,  the  Court  will,  notwithstand- 


340         LAW  OF  VENDORS  AND  PURCHASERS.     [CH.  XIX. 

30.  Declaration  wpon  a  written  agreement,  by  which  the 
plaintiff  agreed  to  purchase  of  the  defendant  his  unexpired 
term  in  a  farm,  and  all  the  crops,  &c.,  alleging  that  the 
defendant  had  not  delivered  up  possession.  Oije  of  the  pleas 
was,  that  the  defendant  in  his  lease  covenanted  with  the 
lessor  not  to  assign  without  his  consent ;  that  the  defendant, 
being  desirous  of  parting  with  the  farm,  applied  to  the  agent 
of  the  lessor,  who  stated  that,  if  he  could  find  a  successor 
eligible  as  tenant,  in  the  landlord's  opinion,  after  they  had 
had  an  opportunity  of  inquiring  and  a  reference,  there  would 
be  no  obstacle  ;  that  the  agreement  was  made  for  the  pur- 
pose of  J.  M.  becoming  occupier  of  the  farm,  and  the  de- 
fendant was  induced  by  the  plaintiff  and  J.  M.  to  enter  into 
the  agreement,  on  the  faith  and  belief  that  the  plaintiff 
knew,  and  the  plaintiff,  to  induce  the  defendant  to  enter 
into  it,  represented,  that  J.  M.  was  a  person  of  respectability, 
and  eligible,  &c.,  and  could  give  references  ;  whereas  J.  M. 
was  not  a  person  of  respectability,  and  could  not  give  refer- 
ences, &c.,  as  the  plaintiff  well  knew.  Held,  a  good,  though 
informal,  plea  of  fraud;  and  that  the  representation  was 
material  to  the  agreement,  and  not  collateral.^ 

31.  Where  the  vendee  applied  to  the  vendor  to  purchase  a 
lot  of  wild  land,  and  represented  to  him  that  it  was  worth 
nothing  except  for  the  purposes  of  a  sheep  pasture,  when 
he  knew  there  was  a  valuable  mil*  on  the  lot,  of  the  exist- 
ence of  which  the  vendor  was  ignorant ;  held,  a  fraud,  which 
would  avoid  the  purchase.^ 

1  Feret  U.Hill,  6  Eng.  Rep.  261.     See        ^  Livingston  v.  Peru,  &c.  2  Paige, 
Canham  v.  Barry,  29  Eug.  Law  &  Eq.    390. 
290. 

ing,  enforce  the  contract,  unless  A.  knew  that  such  would  be  the  effect  of 
the  misrepresentation.  Fellowes  v.  Lord  Gwydyr,  1  Sim.  63.  A  purchase 
of  lands  from  an  executor,  at  a  discount  of  eighteen  per  cent.,  the  purchaser 
knowing  that  the  condition  of  the  estate  did  not  require  the  sale,  is  a  fraud 
in  him,  though  he  may  know  that  they  do  not  amount  to  more  than  the 
executor's  interest  in  the  estate ;  and,  the  executor  not  having  paid  to  the 
other  legatees  their  portion  of  the  estate,  the  purchaser  will  be  compelled  to 
repay  the  money  to  them.    Pinckard  v.  Woods,  8  Gratt.  140. 


CH.  XIX.]  FRAUD.  341 

32.  An  order,  giving  a  party  authority  to  sell  and  convey 
land,  fraudulently  obtained  from  a  Court,  is  no  better  than  a 
power  fraudulently  derived  from  the  party  whose  rights  are 
injuriously  affected  by  it.  It  may  always  be  annulled,  and 
all  proceedings  under  it  may  be  set  aside,  at  his  instance, 
upon  establishing  the  fraud,  at  least  as  to  aU  persons  who 
were  parties  or  privies  to  such  fraud.' 

33.  But  if  the  purchaser  of  land  at  a  sheriff's  sale  was 
innocent,  it  is  immaterial  whether  there  was,  or  not,  fraud 
on  the  part  of  others.^ 

34.  With  regard  to  the  remedy ^  in  case  of  misrepresenta- 
tion by  a  vendor  of  real  estate  ;  it  has  been  sometimes  held, 
(though  such  can  hardly  be  considered  as  the  established 
doctrine,)  that  no  acHon  lies  against  the  vendor  of  real 
estate,  for  false  and  fraudulent  representations  respecting 
its  quality  and  situation.^  So  also,  that  damages  cannot  be 
recovered  for  the  loss  of  a  good  bargain^  and  that  an  action 
will  not  lie  for  a  deceit,  in  an  executory  contract  respecting 
the  sale  of  lands,  unless  perhaps  in  the  false  affirmation  of 
title.* 

35.  But  the  weight  of  authority  is,  that,  where  represen- 
tations are  made  of  the  nature  and  character  of  property 
'offered  for  sale,  affecting  its  value,  which  turn  out  to  be 
false  to  the  knowledge  of  the  party  making  them  ;  an  action 
at  law  lies  for  damages  for  the  dec^t,  and«^  suit  in  equity 
to  set  aside  the  contract.^  Thus  a  vendor,  misrepresenting 
the  state  of  the  title,  will  be  restrained  from  enforcing  it, 

'  though  the  sale  be  with  general  warranty.^  So  the  vendee 
may  go  into  equity  for  relief,  although  there  has  been  no 
eviction.''  So  a  partial  failure  of  consideration  for  a  note 
given  in  payment  for  land  sold,  not  arising  out  of  failure  of 
title,  but  out  of  fraudulent  misrepresentations  respecting  the 

"  Clark  V.  Underwood,  17  Barb.  202.  ^  Attwood  v.  Sftiall,  6  Cla.  &  Fin. 

•^  Spindler  v.  Atkinson,  3  Md.  409.  395. 

^  Shei-wood  v.  Salmon,  2  Day,  128.  ^  Shackelford  v.  Handley,  1   A.  K. 

*  Fagan  v.  Newson,  1  Devereux,  20.         Mar.  370. 

7  English  V.  Benedict,  25  Miss.  167. 

29* 


342         LAW  OF  VENDORS  AND  PURCHASERS.  .   [CH.  XIX. 

quantity  of  timber,  may  be  given  in  evidence  in  defence  in 
a  suit  upon  such  note,  while  it  remains  in  the  hands  of  the 
seller,  or  in  the  hands  of  one  having  no  superior  rights.  And 
the  buyer  may  make  such  defence,  tnough  he  contracted  to 
sell  a  portion  of  the  land,  and  gives  the  seller  in  part  pay- 
ment a  note  signed  by  the  second  vendee  as  principal,  and 
himself  as  surety.^ 

36.  With  regard  to  the  proper  evidence  of  fraud,  in  con- 
tracts for  the  sale  and  purchase  of  lands,  it  has  already 
been  stated,  that  a  written  contract  must  be  expounded  by 
itself,  and  cannot  be  diminished  or  added  to  by  parol  evi- 
dence, except  under  an  allegation  of  fraud  or  mistake.^ 

37.  And  this  exception  has  been  strictly  construed.  Thus 
parol  evidence  is  inadmissible,  that  one  of  the  parties  to  the 
agreement  represented,  that  such  agreement  would  give  to 
the  other  party  what  the  agreement  distinctly  declared  he 
should  not  have;  the  agreement  itself  being  the  best  evi- 
dence of  what  the  parties  intended  should  be  the  final  and 
binding  contract  between  them,  and  nothing  being  shown  to 
have  been  left  out  of  the  agreement  by  fraud  or  mistake.^ 
So  parol  evidence  is  inadmissible,  that  a  contract  for  the 
sale  of  land  was  agreed  to  be  put  in  writing,  but  the  vendor 
fraudulently  refused  to  do  so.* 

38.  But  misrepresentation  and  fraud  may  always  be 
shown  by  pardl  evidejjce.  Thus  the  defe/idant,  in  a  suit 
for  specific  performance,  may  show  in  his  defence  by  parol 
evidence,  that  the  written  contract  relied  upon  does  not 
correctly  and  truly  express  the  agreement  of  the  parties,  but 
that  there  is  some  material  omission,  insertion,  or  variation, 
through  mistake,  surprise,  or  fraud.^  So  where,  in  a  treaty 
for  the  sale  of  property,  the  vendor  makes  material  misrepre- 
sentations, by  which  the  purchaser,  having  no  knowledge  or 
means  of  knowledge  in  relation  thereto,  is  actually  deceived 


'  Hammatt  v.  Emerson,  27  Maine,    John.  24  ;  Watkins  v.  Stockett,  6  Harr. 
308.  &  John.  435. 

■^  Blanchard  v.  Moore,  4  J.  J.  Marsh.        ^  Jarvis  v.  Palmer,  11  Paige,  650. 
471  ;  Wesley   v.   Thomas,   6   Harr.   &        *  Box  v.  Stanford,  13  Sm.  &  M.  93. 

5  Best  V.  Stow,  2  Sandf.  298,  300. 


CH.  XIX.]  FRAUD.  343 

to  his  injury ;  equity  will  rescind  the  contract,  although  it 
do  not  itself  contain  the  misrepresentations  ;  and  whether 
they  be  the  result  of  mistake  or.  fraud.'  So  parol  evidence 
has  been  held  admissible,  by  way  of  defence,  of  a  warranty 
made  by  the  vendor  at  the  time  the  deed  was  executed,  that 
he  had  a  good  title  to  a  certain  number  of  acres.^ 

39.  So,  where  circumstances  denote  fraud  in  omitting  to 
reduce  part  of  an  agreement  into  writing,  the  whole  of  it  is 
open  to  parol  proof.  The  Court  disregards  the  writing,  and 
treats  the  whole  transaction  as  a  verbal  contract. 

40.  Bill  filed  by  the  lessee  of  premises,  which  he  held 
under  a  church  lease,  against  j^rsons  who  had  agreed  in 
writing  to  purchase  his  lease.  The  complainant  alleged, 
that  an  implied  right  of  renewal  entered  into  the  purchase, 
and  that  the  defendants  were  to  take,  subject  to  a  burden 
upon  a  part  of  the  premises,  of  a  lease  for  a  year,  which 
had  been  granted  by  the  complainant.  The  buyers  omitted 
to  insert  these  things  in  the  written  agreement,  but  verbally 
recognized  them ;  and  they  managed  to  get  a  renewal  in 
their  own  names,  through  the  recommendation  of  the  com- 
plainant ;  but  declined,  inasmuch  as  the  old  term  had  in  the 
mean  time  expired,  to  make  good  their  agreement  with  the 
latter,  and  proceeded  to  eject  the  tenant,  who  was  to  have 
held  possession  of  a  part  for  a  year.  Complainant  prayed 
that  the  parties  might  pay  their  purchase-money,  and  per- 
form their  contract  with  him.  A  general  demurrer  was  in- 
terposed, but  overruled.'^  So  an  action  will  lie  against  the 
seller  of  any  interest  in  an  estate,  for  affirming  the  rents  to 
be  more  than  they  are,  while  he  is  in  treaty  about  the  sale, 
if  the  vendee  purchases  upon  the  faith  of  such  affirmation ; 
though  the  seller  was  not  then  in  possession,  and  the  affirm- 
ation preceded  the   sale.*     Thus,  in    an   ancient  case,  the 


1  Hough  V.  Richardson,  3  Story,  R.        ^  phyfe  v.  Wardell,  2  Edw.  Ch.  47. 
659  ;  Prentiss  v.  Euss,  4  Shepl.  30.  *  Lysney   v.   Selby,    2   Ld.    Eaym. 

2  Frederick  v.  Campbell,  13   Serg.  &     1118. 
Rawle,  136  ;  M'Lelland  v.  Creswell,  lb. 

143.     (But  qu.) 


344  LAW   OF   VENDORS   AND   PURCnASERS.  [CH.  XIX. 

defendant,  in  an  action  for  deceit,  sold  the  plaintiff  a  mes- 
suage, which  he  affirmed  was  let  for  £42  per  annum,  the 
rent  being  actually  only  .£32.  Held,  the  action  would  lie, 
the  case  being  not  a  mere  affirmation  of  a  false  value, 
which  is  matter  of  judgment,  but  a  falsity  in  his  own 
knowledge.  Neither  is  it  the  case  of  a  luarranty  in  a  thing 
•apparent ;  because  the  lease  may  be  by  parol,  or  the  tenant 
unwilling  to  say  what  rent  he  paid.^  So,  where  the  vendor 
of  a  public-house  made,  pending  the  treaty,  certain  deceitful 
representations  respecting  the  amount  of  business  done  in 
the  house,  and  the  rent  received  for  a  part  of  the  premises, 
whereby  the  plaintiff  wa^nduced  to  give  a  large  sum  for 
them  ;  held,  the  latter  might  maintain  an  action  on  the  case 
for  the  deceitful  representations,  although  they  were  not 
noticed  in  the  conveyance,  or  in  a  written  memorandum  of 
the  bargain,  drawn  up  after  these  representations  were  made.'^ 
So  where  the  defendant,  being  about  to  sell  a  public-house, 
falsely  represented  to  B.,  who  had  agreed  to  purchase  it,  that 
the  receipts  were  £180  a  month  ;  and  B.,  with  the  knowl- 
edge of  the  defendant,  communicated  this  representation  to 
the  plaintiff,  who  became  the  purchaser  instead  of  B. ;  held, 
the  plaintiff  might  maintain  an  action  against  the  de- 
fendant.^ 

41.  Parol  evidence  is  inadmissible  to  reform  a  written 
contract,  according  to  the  intention  of  the  parties,  upon  the 
ground  of  fraud,  unless  the  declaration  especially  sets  forth 
the  fraud,  as  a  ground  for  such  reformation.  But,  to  insist 
upon  the  legal  effect  of  a  written  agreement,  when  an  excep- 
tion was  not  inserted,  on  the  expressed  understanding  of  the 
parties,  that  such  accepted  matter  was  not  embraced  in  the 
agreement ;  is  such  a  fraud  as  will  admit  parol  testimony  to 
reform  the  contract.^  {a) 

1  Ekins  V.  Tresham,  Lev.  Ft.  1,  102.        ^  Pilmore  v.  Hood,  5  Bing.  N.  C.  97  ; 

2  Dobell  V.  Stevens,  3  Barn.  &.  Cress.     6  Scott,  827. 

623.  *  Eenshaw  v.  Gans,  7  Barr,  117. 

(a)  In  addition  to  the  fraud,  which  consists  of  positive  misrepresentation, 
— suggestio  falsi — with  regard  to  the  property  sold ;  it  is  sometimes  held, 


CH.  XIX.]  FRAUD.  345 

that  mere  negative  concealment — suppressio  veri — of  facts  known  by  one 
party  and  not  known  by  the  other,  has  the  same  effect  of  avoiding  the  sale. 
(See  Waters  v.  Mattingly,  1  Bibb,  244  ;  Broderick  v.  Broderick,  IIP.  Wms. 
240.)  There  is  no  point,  however,  connected  with  the  sale  of  either  real  or 
personal  property,  which  has  been  more  prolific  of  discussion,  or  upon  which 
the  precise  existing  rule  of  law  seems  to  be  more  unsettled.  As  has  been 
already  seen,  even  in  case  of  actual  misrepresentation,  neither  law  nor  equity 
affords  aid  and  relief  to  a  party  who  is  not  injured  by  such  Misrepresenta- 
tion, but  by  his  own  negligence  in  trusting  to  it,  with  full  knowledge  or 
means  of  knowledge  of  the  actual  facts  of  the  case.  (See  WaSon  v.  War- 
ing, 15  Eng.  Law  &  Eq.  121.)  And  the  same  rule  is  still  more  decisively 
applicable  to  mere  concealment ;  which  indeed  can  hardly  be  said  to  exist  in 
the  case  supposed,  because,  from  a  party  having  notice,  nothing  is  truly  con- 
cealed. The  discussions  upon  the  subject  all  presuppose  knowledge  in  one 
party,  and  necessary  ignorance  in  the  other;  and  the  confusion  ai-ises  from 
the  nice  shades  of  distinction  which  run  through  the  decided  cases,  and  the 
elementary  writers,  as  to  the  moral  rights  and  duties  of  vendor  or  vendee 
under  such  circumstances ;  1  and  also  from  the  conflicting  doctrines  of  the 
civil  km  and  the  common  laio  ;  caveat  venditor  being  the  cardinal  maxim  of 
the  one,  caveat  emptor  of  the  other.  It  may  be  useful,  at  the  close  of  the 
present  chapter,  to  refer  to  a  few  of  the  leading  authorities,  some  of  which 
have  been  already  cited  in  other  connections,  upon  the  application  of  the 
latter  maxim,  generally,  to  sales  of  real  property.     (See  Met.  Yelv.  21,  b.) 

'  It  is  said,  (Story  on  Sales,  §  174  ;  see  also  1  Story,  Eq.  §§  204  et.  seq. ;  2  Kent, 
481,)  "concealment  of  a  fact  is  never  considered  as  fraudulent,  unless  there  be  a 
legal  or  equitable  obligation  on  the  part  of  the  person  concealing  it  to  divulge  it, 
growing  out  of  some  express  or  implied  trust  in  the  party  concealing  it.  The 
omission  to  comply  with  a  merely  honorary  or  purely  moral  obligation,  does  not, 
of  itself,  furnish  a  sufficient  ground  to  set  aside  a  contract."  Obviously,  however, 
^this  proposition,  which  may  be  called  not  merely  a  truth,  but  almost  a  truism, 
Plhrows  little  light  upon  the  real  point  of  controversy ;  for  it  furnishes  no  test  of 
the  existence  or  non-existence  of  the  "legal  or  equitable,"  "merely  honorary  or 
purely  moral  obligation,"  referred  to. 

A  distinction  is  sometimes  made  between  intrinsic  and  extrinsic  circumstances, 
which  affect  the  value  of  the  property  sold  ;  the  former  appertaining  to  the  nature, 
condition,  chai'acter,  quality,  or  quantity  of  the  property  itself;  the  latter  to  col- 
lateral facts :  and  the  duty  of  disclosure  held  to  be  more  binding  with  respect  to 
the  former  than  the  latter.  The  distinction,  however,  does  not  seem  sufficiently 
established  by  English  and  American  authorities,  however  well  settled  in  the  civil 
law,  to  require  further  notice.  It  is  also  sometimes  stated,  that,  while  mere 
concealment  may  not  give  the  right  to  annul  an  executed  contract,  by  legal  pro- 
ceedings instituted  on  behalf  of  the  party  injured;  still  it  may  be  set  up  in  defence 
against  a  suit  in  law  or  equity,  upon  an  executory  agreement,  brought  by  the 
party  who  has  practised  it. 


346         LAW  OF  VENDORS  AND  PURCHASERS.     [CH.  XIX. 

Upon  this  subject,  it  has  been  truly  said  (Taylor  v.  Fleet,  4  Barb.  102,)  that 
"  the  vendee  must  guard  liimself  against  the  vendor's  strong  representations 
and  commendations  of  the  good  (pialitics  of  the  land  sold,  by  personal 
examination  and  inquiry,  unless  such  examination  and  in<|uiry  are  dillicult 
or  are  prevented  by  the  artifice  of  the  vendor."  This  principle  has  been 
held  to  apply,  where  the  vendor  of  a  house  represented  it,  as  a  residence 
ht  for  a  respectable  fainihj ;  because  the  vendee  might  see  the  house  and 
judge  upon  tlftit  point  for  himself.  (Magennis  v.  Fallon,  2  Moll.  4G1.)  So, 
where  a  house  was  sold,  on  the  north  side  of  the  Thames,  supposed  to  be  in  the 
County  of* Essex,  but  actually  in  Kent,  a  small  part  of  which  county  was 
on  the  other  side  of  the  river  ;  the  purchaser  was  told  he  would  be  made  a 
churchwarden  of  Greenwich,  when  his  object  was  to  be  a  freeholder  of 
Essex  ;  yet  he  was  compelled  to  complete  the  purchase.  (Shirley  v.  Davies, 
6  Ves.  678.  This,  however,  with  some  others  of  like  import,  has  been  called 
a  tcild  case, — per  Hart,  L.  C.  -2  Moll.  588.)  So  the  description  of  the  land, 
as  "  uncommonly  rich  water  meadow,"  was  held  to  be  the  mere  loose  opinion 
of  the  auctioneer  or  vendor,  upon  whi(;h  the  purchaser  could  not  be  sup- 
posed to  place  any  reliance.  (Scott  v.  Hanson,  1  Sim.  13.)  So,  where  a 
house  without  roof  or  windows  is  warranted  to  be  in  perfect  repair ;  the 
warranty  is  said  not  to  be  binding.  (Per  Lord  Rosslyn,  Grant  v.  Munt, 
Coop.  1 73.)  So,  where  C.  gave  a  certificate  that  certain  lands,  which  he 
had  "  partially  explored,"  contained,  "  as  far  as  my  knowledge  extends,"  a 
certain  average  of  timber,  and  it  appeared  that  the  purchasers,  to  whom  it 
was  given,  had  as  full  means  of  knowledge  as  C. ;  it  was  held,  that  they 
were  not  entitled  to  place  implicit  reliance  thereon,  and  make  it  {he  basis  of 
their  contract,  but  that  they  should  have  investigated  the  grounds  of  the 
opinion  therein  expressed,  and  the  extent  of  the  exploration  by  C  Hough 
V.  Richardson,  3  Story,  R.  659.  But  it  is  said,  (1  Sugd.  445,)  that,  where  a 
particular  description  Is  given  of  the  estate,  which  turns  out  to  be  false,  and 
the  purchaser  cannot  be  proved  to  have  had  a  distinct  knowledge  of  the 
actual  state  of  the  subject  of  the  contract,  he  will  be  entitled  to  a  compenj^B 
sation.  Thus,  where  the  particular  described  the  house  sold  as  in  good~ 
repair,  and  the  farm  as  consisting  of  arable  and  marsh  land,  in  a  high  state 
of  cultivation,  it  was  held  that  these  were  points  of  which  a  purchaser  might 
have  an  indistinct  knowledge ;  but,  if  defects  became  apparent  upon  a  sub- 
sequent, careful  examination,  he  was  entitled  to  be  compensated. 

In  Harvey  v.  Young,  (Yelv.  21,  a.)  the  plaintiff  brought  an  action  for 
deceit  in  the  sale  of  a  term,  which  the  vendor  affirmed  to  be  worth  £l50, 
but  which  proved  to  be  worth  only  £100.  A  distinction  was  there  taken 
between  mere  affirmation  and  warranty,  but  no  decision  seems  to  have  been 
made.  This  distinction  was  afterwards  overruled  in  Pasley  v.  Freeman,  3 
T.  R.  57.  The  true  principle  is  stated  to  be,  that,  where  an  affirmation  is  a 
mere  assertion,  and  the  vendee  may  judge  for  himself,  as  in  case  of  a  mere 


CH.  XIX.]  FRAUD.  347 

opinion,  or  where  the  truth  may  be  knovm  by  common  prudence,  no  action 
lies.    Yelv.  (Met.)  21,  a.  n. 

The  following  cases  relate  more  particularly  to  mere  concealment. 

Action  by  the  purchaser  against  the  vendor  of  a  house,  for  selling  him 
the  house,  knowing  it  had  the  dry  rot.  It  appeared  that  the  house  wag 
situated  in  a  clayey  soj^  and  that  the  floor  lay  near  the  ground,  whereby 
some  of  the  timbers  had  rotted  ;  but  that  the  vendor  was  not  aware  of  these 
defects.  Lord  Kenyon  denominated  them  mere  bagatelles ;  and  remarked, 
that,  if  these  small  circumstances  were  to  be  the  foundation  of  an  action, 
every  house  that  was  sold  would  produce  an  action.  A  broken  pane  of 
glass  in  a  garret  window  would  furnish  ground  for  an  action.  His  Lordship 
further  remarked,  that  he  had  met  with  something  of  this  kind,  and  he 
never- thought  himself  imposed  upon,  because  now  and  then  some  rotten 
boards  and  rotten  joists  might  be  found  about  a  house.  The  plaintiff  was 
nonsuited.     Boulds  v.  Atkinson,  2  Sugd.  452. 

Case  for  deceit.  Declaration  that  the  defendant,  being  lessee  of  certain 
premises,  agreed  to  sell  them  to  the  plaintiff,  who  agreed  to  purchase  them 
of  her,  for  the  residue  of  the  term,  and  they  were  assigned  to  him  accord- 
ingly ;  that,  at  the  times,  &c.,  the  premises  were  held  by  a  tenant  of  the 
defendant  at  the  rent  of  £100  a  year,  but  charged  with  £16  a  year  for  rates 
and  taxes,  which  the  tenant  paid,  and  was  at  liberty  to  deduct  out  of  the 
rent;  all  of  which  the  defendant  knew,  but  the  plaintiff  did  not,  as  the 
defendant  also  knew ;  that  the  defendant,  at  the  times,  &c.,  deceived  the  * 
plaintiff,  and  fraudulently  represented  to  him  that  the  premises  were  let  at 
£100  a  year  clear  of  taxes  and  rates,  and  concealed  from  him  that  the  rent 
was  subject  to  the  said  deductions ;  that  the  plaintiff  was  induced  by  the 
representations  and  conduct  of  the  defendant  to  take  the  assignment ;  and 
that  the  defendant,  by  means  of  the  premises,  &c.,  deceived  the  plaintifl", 
and  induced  him  to  purchase,  &c.,  at  a  larger  sum  than  he  otherwise  would 
have  paid.    Plea,  not  guilty.  * 

A  special  verdict  stated,  that  the  de^ndant  knew  of  the  a]?ove  deductions, 
which  were  made  by  agreement  from  the  rent ;  that  she  desired  W.,  her 
attorney,  to  instruct  the  plaintiff,  an  auctioneer,  to  prepare  particulars  for 
sale  of  the  premises,  and  referred  W.  for  information  to  a  person  having  a 
lien  on  the  premises,  who  told  W.  that  the  rent  was  £100  a  year ;  that  W. 
asked  no  question  about  rates  and  taxes,  assuming  that  the  tenant  paid 
them,  as  the  practice  was  in  London,  where  the  premises  were  situate  ; 
that  the  defendant  did  not  further  interfere ;  that  W.,  not  knowing  that  the 
defendant  paid  the  rates  and  taxes,  instructed  the  plaintiff  that  the  premises 
were  held  by  a  tenant  at  £100  a  year,  but  never  described  them  to  him  as 
clear  of  rates  and  taxes,  or  authorized  him  so  to  represent  them ;  that  the 
plaintiff  drew  up  a  particular  for  the  sale,  stating  the  premises  to  be  let  at 
£100  "clear  of  rates  and  taxes;"  that  W.  saw  the  particular,  but  did  not 


348  LAW   OF   VENDORS   AND   PURCnASERS.  [CII.  XIX. 

correct  it,  because  he  thought  it  true,  and  W.  tliought  it  the  plaintifT's  duty 
to  inquire  into  the  outgoings,  when  he  was  employed  to  make  the  particular ; 
that  the  premises  were  put  up  to  sale  and  bought  in,  and  the  plaintlfl"  then 
took  them  himself,  and  they  were  assigned  to  him ;  that  neither  W.  nor  the 
plaintiff  knew  of  the  agreement  for  a  deduction  from  the  rent,  till  after  the 
assignment  and  payment  of  the  purchase-money  5  a^d  that,  at  the  times  of 
such  assignment  and  payment,  the  plaintiff  believed  the  premises  to  be  let  at 
£100  clear  of  rates  and  taxes.  Held,  on  this  finding,  it  did  not  appear  that 
the  defendant  had  been  guilty  of  any  actual  fraudulent  representation  or 
concealment,  or  had  authorized  any ;  that  if  W.,  as  her  agent,  had  been  thus 
guilty,  she  would  herself  have  been  liable ;  but  that  no  such  misfeasance 
by  W.  appeared  by  the  verdict ;  and  therefore  the  defendant  was  entitled 
to  judgment.     Wilson  v.  Fuller,  3  Ad.  &  Ell.  N.  S.  68. 

But  it  is  said,  if  a  vendor  should  sell  an  estate,  knowing  he  had  no  title, 
or  that  there  were  incumbrances  unknown  to  the  vendee,  the  sale  would  be 
voidable  for  fraud.  So  in  case  of  the  sale  of  a  house  in  a  distant  town, 
which  the  vendor  knew  to  be  burnt  down,  the  vendee  being  ignorant  of  it. 
2  Story,  Eq.  226-27,  §§  208-9  ;  Arnott  v.  Biscoe,  1  Ves.  95  ;  Pillage  v.  Ar- 
mitage,  12  Ves.  78. 

Bill  for  specific  perfoiniiance  by  a  vendor.  Defence,  that  he  represented 
it  as  clearing  a  net  value  of  £90  per  annum,  and  gave  no  notice  of  the 
necessary  repair  of  a  wall  to  protect  the  estate  from  the  Thames,  which 
would  be  an  outgoing  of  £50  per  annum.  Upon  the  ground  that  this  fact 
had  been  industriously  concealed,  the  bill  was  dismissed,  but  without  costs. 
Shirley  v.  Stratton,  1  Bro.  440. 

So  where  the  vendor  of  a  house,  knowing  a  defect  in  a  main  wall,  plas- 
tered it  up  and  papered  it  over ;  held,  he  was  liable  to  the  purchaser. 
4  Taun.  785. 

Concealment  may  be  practised  by  the  vendee  as  well  as  the  vendor.  In 
such  case  it  has  been  held,  that,  i^one,  knowing  the  existence  of  a  mine 
upon  the  land  pf  another  who  is  igiorant  of  it,  purchase  the  land  for  a 
price  which  the  land  would  be  worth  without  the  mine ;  the  vendor  is  still 
bound.  Fox  v.  Mackreth,  2  Bro.  420.  Although  it  has  been  doubted 
whether  a  Court  of  Equity  would  enforce  specific  performance  in  favor  of 
the  purchaser.  2  Kent,  490 ;  Parker  u.  Grant,  1  Johns.  Ch.  630.  And 
Lord  Eldon  remarks,  (Turner  v.  Harvey,  Jac.  178,)  that,  although  the 
vendee,  in  the  case  supposed,  is  not  bound  to  give  the  information  where 
no  inquii-y  is  made,  still  a  very  little  will  affect  the  application  of  the  prin- 
ciple, and  it  will  not  be  allowed  to  operate,  if  a  single  word  is  dropped  tend- 
ing to  mislead  the  vendor.     See  Pidcock  v.  Bishop,  3  B.  &  C.  605. 


CH.  XX.}  INCAPACITY,   ETC.  349 


CHAPTER    XX. 

IMPLIED  OR  CONSTRUCTIVE  FRAUD. — INCAPACITY,  INADEQUACY  OF 
CONSIDERATION,  ETC. 


1.  Constnictive  fraud. 

2.  Mental  inability. 
6.  Drunkenness. 


10.  Inadequacy  of  consideration. 
16.  Excess  of  consideration. 


1.  A  CONTRACT  for  the  sale  and  purchase  of  real  property 
may  be  avoided,  not  only  by  actual  but  by  constructive  fraud, 
consisting  for  the  most  part  in  the  personal  incapacity  of 
one  of  the  parties,  or  in  some  circumstance  of  the  case, 
which  renders  it  harsh  or  inequitable  to  enforce  the  contract. 
It  will  be  seen,  that  this  class  of  objections,  though  compre- 
hending those  which  in  name  and  form  are  various,  has  still 
a  common  character  running  through  the  whole,  and  re- 
quiring that  they  should  be  considered  together.  Thus 
inadequacy  of  consideration  will  often  defeat  the  sale,  when 
combined  with  some  personal  disability,  although  of  itself  it 
might  not  produce  that  result.  And  the  same  may  be  said 
of  contracts  made  with  heirs,  or  with  those  holding  a  confi' 
dential  relation  to  the  other  contracting  party.  ( Chaps.  21-2.) 
Constructive  frauds  are  defined  to  be  "  such  acts  or  contracts 
as,  although  not  originating  in  any  actual  evil  design  or 
contrivance  to  perpetrate  a  positive  fraud  or  injury  upon 
other  persons,  are  yet,  by  their  tendency  to  deceive  or  mis- 
lead other  persons,  or  to  violate  private  or  public  confidence, 
or  to  impair  or  injure  the  public  interests,  deemed  ifequally 
reprehensible  with  positive  fraud,  and,  therefore,  are  prohib- 
ited by  law,  as  within  the  same  reason  and  mischief  as  acts 
and  contracts  done  malo  animo.^ 

1  1  Story,  Eq.  §  258. 
30 


350  LAW   OF   VENDORS   AND   PURCHASERS.  [ciI.  XX, 

2.  With  respect  to  mental  inability^  (a)  as  a  ground  for 
avoiding  a  sale  or  purchase  of  real  estate,  the  law  enumer- 
ates four  classes  of  persons  as  non  compotes  mentis.  1,  an 
idiot  or  natural  fool ;  2,  one  who  was  of  good  and  sound 
memory,  but  by  the  visitation  of  God  has  lost  it ;  3,  a 
lunatic,  one  who  has  lucid  intervals,  being  sometimes  of 
good  and  sound  memory,  sometimes  not ;  4,  a  non  compos 
by  his  own  act,  such  as  a  drunkard.' 

3.  Mental  incapacity  must  of  course  be  affirmatively  and 
distinctly  proved,  in  order  to  avoid  a  sale.  Thus,  that  the 
intellectual  capacity  of  one  of  the  parties  to  a  contract  is 
below  that  of  the  average  of  mankind,  does  not  alone  fur- 
nish sufficient  ground  for  setting  aside  the  contract.^  So  a 
contract  is  not  invalid,  if  made  by  a  man  in  the  habit  of 
buying  and  selling,  and  transacting  his  own  business,  merely 
because  he  was  illiterate,  unless  he  has  been  grossly  deceived 
or  fraudulently  imposed  on.^  But  those,  who  from  imbecility 
of  mind  are  incapable  of  taking  care  of  themselves,  are 
under  the  special  protection  of  the  law ;  and  a  contract  en- 
tered into  by  one  of  weak  understanding,  more  especially  if 
superinduced  by  undue  influence  or  misrepresentation,  will, 
upon  application  of  the  deceived  party,  be  set  aside  by  a 
Court  of  Equity .4  So  a  stipulation  procured  by  one  party 
from  the  other,  while  his  mind  was  incapable  of  rational 
volition,  either  by  reason  of  unsoundness,  or  of  illegal  and 
unjust  constraint,  ought  to  be  dissolved  by  a  Court  of  Equity, 
as  wanting  the  assent  of  the  party,  unless  ratified  and  con- 
firmed while  the  mind  was  sound  and  free  to  act.^ 

4.  A  contract  for  the  sale  of  land,  made  by  one  who  had 
been  adjudged  a  lunatic,  is  absolutely  void,  and  no  action 

^  Beverley's  case,  4  Co.  124  ;  Co.  Lit.        *  Craddock  v.  Cabincss,  1  Swan,  474. 
247  a.     -  5  Taylor   v.   Patrick,    1    Bibb,   168  ; 

2  Mann  v.  Betterly,  21  Verm.  326.        Rutherford  v.  Ruff,  4  Desaus.  350. 

3  Rodman  v.  Zilley,  1  Saxton  (N.  J.) 
Oh.  320. 

(a)  As  to  tlie  ancient  maxim  of  the  law,  that  "  no  man  shall  be  permitted 
to  stultify  himself,"  see  1  Pars,  on  Contr.  310,  and  note,  and  authorities. 


CH.  X^.]  INCAPACITY,    ETC.  351 

can  be  maintained  to  enforce  it ;  nor  can  the  committee,  to 
whom  the  care  of  his  estate  has  been  intrusted,  by  any  act 
of  his,  make  such  a  contract  good.^  But,  although  sales  at 
a  great  undervalue,  from  one  that  was  afterwards  a  lunatic, 
were  set  aside,  the  conveyances  were  decreed  to  stand  a 
security  for  what  was  really  paid.^  And,  where  a  bill  is  filed 
to  set  aside  a  purchase  made  by  a  lunatic,  and,  upon  the 
report  of  the  clerk  and  master,  it  appears  that  the  price  was 
not  grossly  extravagant,  and  that  the  lunatic  has  it  not  in 
his  power  to  make  compensation  if  the  contract  should  be 
set  aside  ;  the  bill  will  be  dismissed.^ 

5.  The  plaintilf  contracted  for  the  purchase  of  an  estate 
from  the  defendant  and  paid  a  deposit,  on  the  terms  that, 
unless  he  objected  to  the  title  within  a  certain  time,  it  should 
be  considered  as  accepted.  No  objection  was  made  by  him 
to  the  title.  The  plaintiff,  at  the  time  of  the  contract  and 
of  the  payment  of  the  deposit,  was  a  lunatic,  incapable  of 
understanding  the  meaning  of  a  contract,  or  of  managing 
his  affairs,  and  derived  no  benefit  from  the  contract;  but 
these  facts  were  unknown  to  the  defendant,  who  made  the 
contract  with  him  fairly  and  bond  fide,  believing  him  capable 
of  understanding  its  meaning.  Held,  the  plaintiff  was  not 
entitled  to  recover  the  deposit.* 

6.  Another  form  of  mental  incapacity  is  drunkenness.  As 
a  principle  of  criminal  law,  subject  perhaps  to  occasional 
TBcceptions  or  qualifications,  drunkenness  is  held  to  be  no 
excuse  or  justification  for  crime  ;  and  indeed  is  sometimes 
said  rather  to  aggravate  than  extenuate  an  offence  against 
law.  Upon  the  same  principle,  drunkenness  is  regarded  as, 
in  general,  a  less  substantial  ground  for  avoiding'  contracts, 
than  any  form  of  mental  imbecility,  not  the  result  of  the 
party's  own  act.     Still,  however,  equity  will  relieve  against 

1  FitzhuRh  V.  Wilcox,  12  Barb.  235.  ^  Addison  v.  Dawson,  2  Vera.  678. 
See  Donald  v.  Morton,  1   Mass.  543  ;  ^  Carr  v.  Holliday,  5  Ired.  Eq.  167. 
White  V.  Palmer,  4  lb.  147  ;  Leonard  v.  *  Beavan  v.  M'Donnell,  24  Eng.  Law- 
Leonard,  14  Pick.  280  ;  Gaugmere,  14  &  Eq.  484. 
Penn.   417  ;    M'Creight    v.    Aiken,    1 
Price,  156. 


352  LAW    OF   VENDORS   AND    PURCHASERS.  [CYl.  XX. 

contracts  made  by  a  person  when  drunk,  if  jjrocured  by  any 
fraud  or  imposition,  or  even  without  this  accompaniment,  in 
case  of  excessive  drunkenness,  where  the  party  is  utterly 
deprived  of  the  use  of  his  reason  and  understanding.  So 
also,  where  he  has  been  drawn  into  drink  by  some  contriv- 
ance or  management.  In  other  cases,  the  parties  will  be 
left  to  their  rights  and  liabilities  at  law.^  {a)  (s.  9.) 

7.  More  especially,  if,  when  a  man  is  so  drunk  as  to 
render  him  an  easy  prey  to  the  fraudulent  designs  of  another, 
an  unfair  advantage  is  taken  of  his  situation  to  procure 
from  him  an  unreasonable  bargain,  equity  will  rescind  the 
contract,  not  on  the  ground  of  his  drunkenness,  but  of  the 
fraud.^  So  a  contract  may  be  avoided  by  the  legal  repre- 
sentatives of  a  party,  on  the  ground  of  his  having  been 
drunk  when  it  was  made,  though  such  drunkenness  was  not 
occasioned  by  the  procurement  of  the  other  party .^ 

8.  A.  and  B.,  tenants  in  common  of  a  lot  of  land,  con- 
tracted separately  with  C.  to  convey  to  him  all  their  interest 
therein,  on  the  payment  to  each  of  them  of  $300.  The 
money  being  paid,  possession  was  delivered  to  C,  who, 
after  the  death  of  A.  and  B.,  filed  a  bill  in  chancery  against 
D.,  their  heir,  for  specific  performance.     D.  by  her  answer 

1  Beverley's  case,  4  Co.  124;  3  Bac.  2  Dev.  &  Bat.  221  ;  Ford  v-  Hitchcock, 

Abr.  Idiots,  &c.  A. ;  Johnson  v.  Medli-  8    Ohio,    214;  CoHcant   v.  Jackson,   16 

cott,  3  P.  Wms.   130 ;  Cook  v.  Clay-  Verm.    335  ;    Prentice    v.    Achorn,    2 

worth,   13  Ves.    12;  Cory  v.  Cory,   I  Paige,  30. 

Ves.  19  ;  Pitt  v.  Smith,  3  Camp.  33;  ^  Calloway  v.  Witherspoon,  5  Ire^. 

Dorr  v.  Mwnsell,   13  Johns.  430;  Sey-  Eq.  128. 

mour  V.  Delancy,  3  Cow.  445 ;  Barrett  v.  ^  Wigglesworth  v.  Steers,   1  Hen.  & 

Buxton,  2  Aik.  167;  Morrison  y.M'Leod,  Munf.  70. 


(a)  "  Where  the  party,  when  he  enters  into  the  contract,  is  in  such  a 
state  of  drunkenness  as  not  to  know  what  he  is  doing,  and  particularly 
when  it  appears  that  is  known  to  the  other  party,  the  contract  is  void  alto- 
gether, and  he  cannot  be  couapelled  to  perform  it.  A  person  who  takes  an 
obligation  from  another  under  such  circumstances  is  guilty  of  actual  fraud. 
The  modern  decisions  have  qualified  the  old  doctrine,  that  a  man  shall  not 
be  allowed  to  allege  his  own  lunacy  or  intoxication,  and  total  drunkenness  is 
now  held  to  be  a  defence."  Per  Parke,  B.,  Gore  v.  Gibson,  13  M.  &  W. 
623. 


CH.  XX.]  INCAPACITY,   ETC.  353 

alleged,  that  both  A.  and  B.  were  in  habits  of  intemperance, 
and  almost  constantly  in  a  state  of  intoxication ;  that  the 
contract  was  made  by  them  when  in  a  state  of  intoxication, 
or  when  they  were  incapable. of  transacting  business,  at  a 
price  greatly  below  its  value,  &c.  Decreed,  that  J),  convey 
to  C.  one  undivided  part  of  the  lot ;  but,  as  to  the  contract 
of  B.,  on  account  of  the  satisfactory  proof  of  his  imbecility, 
it  ought  not  to  be  enforced;  and  that  C.  deliver  to  D.,  or 
permit  her  to  take  or  enjoy,  the  other  undivided  parts  of 
the  lot,  without  her  refunding  the  consideration  paid  by  C. 
to  B.^ 

9.  But  where,  in  a  suit  for  the  specific  performance  of  an 
agreement,  the  principal  defence  set  up  was  incapacity  at  the 
time  of  executing  it,  on  the  ground  of  intoxication;  the  Court 
held,  that  it  could  not  assist  in  getting  rid  of  the  agreement, 
on  the  mere  ground  of  intoxication,  no  fraud  being  alleged ; 
but  decreed  a  specific  performance  with  costs.^  So  it  is 
held,  that  intoxication  of  a  contracting  party  is  no  ground 
for  setting  aside  the  contract,  where  it  was  not  induced  by 
the  other  party,  unless  it  is  habitual,  so  as  to  derange  the 
mind,  or  subject  it  to  frequent  fits  of  derangement,  or  is  so 
great  as  to  deprive  the  party  of  his  reason.^  So,  that  the 
vendee's  being  intoxicated  at  the  time,  and  not  in  a  situation 
to  judge  correctly,  or  act  with  prudence,  will  not  avail  him 
to  avoid  the  contract,  unless  he  can  show  that  it  was  pro- 
cured by  the  contrivance  of  the  vendor,  or  that  an  unfair  or 
improper  advantage  was  taken  of  his  situation.'*  (s.  6.) 

10.  We  have  alreatly  had  occasion  (Chap.  3,)  to  consider 
the  subject  of  consideration,  as  an  element  in  the  sale  of  real 
property,  necessary  to  the  validity  of  this,  as  of  other  con- 
tracts. It  now  becomes  necessary — assuming  so)ne  consid- 
eration to  exist — to  consider  its  amount,  either  by  way  of 

1  Rcinicker  v.  Smith,  2  Har.  &  John.  ^  Hutchinson  v.    Brown,    1    Clarke 
421.  408. 

2  Shaw  V.  Thackray,  23  Eng.  Law  &  *  Rodman  v.  Lillev,  1  Saxt.  320. 
Eq.  18. 

30* 


354  LAW   OF   VENDORS   AND   PURCHASERS.  [CH.  XX. 

deficiency  or  excess,  as  affecting  the  validity  of  the   con- 
tract, (a) 

11.  Inadequacy  of  consideration,  though  not,  in  general, 
of  itself  a  sufficient  ground  for  avoiding  a  contract,  is,  when 
gross,  strong  evidence  of  fraud^  and  may  be  so  great  as  to 
form  a  ground  for  cancelling  the  contract.^  Thus,  although 
mere  inadequacy  of  consideration  furnishes  no  sufficient 
ground  for  the  interference  of  a  Court  of  Equity  to  set  aside 
a  contract ;  inadequacy  of  consideration,  united  with  such 
a  degree  of  weakness  and  imbecility  of  intellect,  as  would 
justify  the  inference  that  such  weakness  had  been  taken 
advantage  of,  will  afford  sufficient  ground  for  this  inter- 
ference.^ More  especially  an  agreement  made  for  a  consid- 
eration grossly  inadequate,  by  one  of  great  imbecility  of 
mind,  with  another  whose  position  in  relation  to  him  con- 
ferred undue  influence  and  control  over  him,  will  be  set 
aside.^     So    suspicion   of   fraud,  coupled  with  gross  inad- 

1  Lowthei-  V.  Lowther,   13  Vcs.  95 ;        ^  Mann  v.  Bctterly,  21  Verm.  326. 
Coles  V.  Trecothick,  9  Ves.  234.  *  Cook  v.  Cole,  2  Halst.  Ch.  K.  522. 

'  Stillwell  V.  Wilkius,  Jac.  282. 

(a)  In  remarking  upon  the  subject  of  mistake^  (Chap,  18,)  we  briefly  re- 
f'ei'red  to  the  kindred  point  of  surprise,  as  invalidating  a  sale  of  real  property. 
Perhaps  surprise  may  be  considered  to  have  a  more  direct  bearing  upon  the 
price  or  consideration  than  any  other  part  of  the  transaction ;  and  the 
following  remarks  of  an  approved  writer  may  therefore  properly  be  cited 
in  this  connection  :  "  Cases  of  surprise  and  sudden  action,  without  due  de- 
liberation, may  properly  be  referred  to  the  same  head  of  fraud  and  impo- 
sition. An  undue  advantage  is  taken  of  the  party,  under  circumstances 
which  mislead,  confuse,  or  disturb  the  just  result  of  his  judgment,  and  thus 
expose  him  to  be  the  victim  of  the  artful,  the  importunate,  and  the  cunning. 
It  is  not  every  surprise  which  will  avoid  a  deed  duly  made.  Nor  is  it  fitting, 
for  it  would  occasion  great  uncertainty;  and  it  would  be  impossible  to  fix 
what  is  meant  by  surprise  ;  for  a  man  may  be  said  to  be  surprised  in  every 
action  which  is  not  done  with  so  much  discretion  as  it  ought  to  be.  The 
surprise  hei'c  intended,  must  be  accompanied  with  fraud  and  circumvention ; 
or,  at  least,  by  such  circumstances  as  demonstrate  that  the  party  had  no 
opportunity  to  use  suitable  deliberation,  or  that  there  was  some  influence  or 
management  to  mislead  him."  1  Story,  Eq.  §  251 ;  1  Fonb.  Eq.  B.  1,  ch.  2, 
§8. 


CH.  XX.]  INCAPACITY,   ETC.  355 

equacy  of  price,  and  the  pressure  of  pecuniary  embarrass- 
ment, is  sufficient  ground  to  rescind  a  sale;^  as  where  the 
complainant,  who  was  in  embarrassed  circumstances,  his 
property  being  levied  on,  and  about  to  be  sold  under  execu- 
tion, sold  his  farm  to  the  defendant,  received  part  of  the 
price  in  cash,  and  for  the  residue  accepted  a  deed  of  land  in, 
another  State,  which  he  had  never  seen,  and  which  was  not 
worth  more  than  one  half  of  the  estimated  amount.^  So  a 
cohtract  will  be  set  aside  in  equity  for  inadequacy  of  con- 
sideration, where  there  is  inequality  in  the  condition  of  the 
parties.^  So,  where  an  unconscientious  advantage  is  taken 
by  the  vendee  of  the  improvidence  and  distress  of  the  vendor ; 
inadequacy  of  price,  whether  so  gross  as  to  be  per  se  proof 
of  fraud  or  not,  will  in  equity  avoid  even  an  executed  con- 
tract.* So  inadequacy  of  price  alone,  when  the  vendor  did 
not  understand  the  contract,  or  was  induced  to  make  it  to 
escape  oppression,  will  vitiate  the  sale,  whether  these  facts 
appear  from  the  inadequacy  itself  or  otherwise.^ 

12.  A  sale  of  land  at  a  halfpenny  for  every  square  yard, 
which  the  vendee  knew  not  to  be  one  fourth  part  of  the 
value,  was  held  fraudulent  and  void  in  equity.^  So  the 
purchase  of  an  estate  of  a  tenant  for  life,  who  was  outlawed 
and  absconded,  was  set  aside  in  favor  of  creditors,  being 
made  at  an  undervalue,  and  pending  the  prosecution  at  law 
against  him,  and  with  notice  thereof.'^  So  relief  was  given 
against  a  sale,  where  the  purchaser  knew  that  the  vendors, 
the  assignees  of  a  bankrupt,  were  ignorant  of  a  circum- 
stance considerably  increasing  the  value.^  So  where,  on  a 
bill  to  set  aside  a  purchase,  the  answer  of  ttie  defendants, 
the  devisees  of  the  purchaser,  admitted  gi'eat  inadequacy  of 
price,  and  stated  their  ignorance  as  to  other  circumstances 
of  fraud  alleged  ;  a  receiver,  was  appointed.^ 

1  Lester  v.  Mahan,  25  Ala.  445.  ^  Deane  v.  Rastron,  1  Anstr.  64. 

^  Ibid.  "  Heme  v.  Meers,  1  Vein.  465. 

3  George  v.  Richardson,  Gilmer,  231.        *  Turner  v.  Harvey,  Jac.  169. 
*  M'Kinney  v.   Pinchard,  2  Leigh,        «  Stillwell  v.  Wilkins,  Jac.  280.    See 

149.  Maddcford  v.  Austurick,  1  Sim.  89, 
6  Cruise  V,  Christopher,  5  Dana,  182. 


350  LAW    OF   VENDORS   AND   I'UilCUASERS.  [CII.  XX. 

13.  It  may  be  gathered  from  the  general  current  of  au- 
thorities upon  this  subject,  that,  although  a  Court  of  Equity 
may  refuse  to  enforce  an  agreement  for  inadequacy  of  con- 
sideration, yet  the  inadequacy  must  be  so  great,  gross,  and 
palpable  as  to  be  evidence,  perhaps  even  conclusive  evi- 
dence, of  fraud,  or  some  unconscientious  advantage  ;  and, 
in  settling  this  'point,  the  condition  and  circumstances  of 
the  estate  at  the  time  of  sale  are  to  be  the  criterion.'^  So  it 
is  held  that  relief  will  be  granted  in  equity,  only  where  fhe 
inadequacy  is  so  extreme  as  to  satisfy  the  Court,  that  there 
must  have  been  imposition  or  oppression.^  There  must  have 
been  unreasonableness,  inequality/,  and  hardship;  as  where  the 
price  amounted  to  but  one  half  the  value  of  the  estate.^ 
Weakness  and  indiscretion  are  said  not  to  be  sufficient,  nor 
even  a  hard  and  unconscionable  bargain,  to  set  aside  the 
sale,  unless  fraud  or  undue  means  have  been  used.*  The 
bargain  must  be  such,  it  is  said,  "  that  it  must  be  impossible 
to  state  it  to  a  man  of  common  sense,  without  producing  an 
exclamation  at  the  inequality  of  it."  ^  So  it  is  held,  that, 
unless  the  inadequacy  is  so  great  as  to  shock  the  moral  sense 
of  an  indifferent  man,  the  contract  being  entered  into  delib- 
erately and  fair  in  all  its  parts,  such  inadequacy  is  not  an 
objection  to  its  being  executed.^  [a) 

1  Fripp  V.  Fripp,  Rice,  Eq.  84  ;  Os-        ^  Seymour  v.  Delancey,  6  Johns.  Ch. 
good    V.   Franklin,    2    Johns.    Ch.    1  ;     222. 

Western  v.  Russell,   3  Vcs.  &  B.  187;  M    Sugd.  367-8.     See  2  Story,  Eq. 

Judge  V.  Wilkins,  19  Ala.  765  ;  White  §  235. 

V.  Flora.  2  Tciin.  426 ;  January  v.  Mar-  ^  Per  Ld.  Thurlow,  Gwyune  v.  Hea- 

tin,  1  Bibb,  586.  ton,  1  Bro.  1. 

2  Underhill  v.  Horwood,  10  Ves.  209 ;  ®  Seymour  v.  Delancey,  3  Cow.  445. 
14  Ves.  28. 


(a)  The  following  remarks  of  an  English  Judge  may,  perhaps,  be  consid- 
ered as  expressing  the  general  doctrine,  both  of  law  and  equity,  upon  this 
subject :  "  The  law  will  not  assist  a  man  who  is  capable  of  taking  care  of 
his  own  interest,  except  in  cases  where  he  has  been  imposed  upon  by  deceits 
against  which  ordinary  prudence  could  not  protect  him.  If  a  person  of 
ordinary  understanding,  on  whom  no  fraud  has  been  practised,  makes  an 
imprudent  bargain,  no  court  of  justice  can  release  him  from  it.  Inadequacy 
of  consideration  is  not  a  substantial  ground  for  setting  aside  a  conveyance  of 


CH.  XX.]  INCAPACITY,   ETC.  357 

14.  Thus  it  was  held,  that  an  agreement  for  the  sale  and 
assignment  of  a  present  interest  in  a  considerable  property 
should  not  be  set  aside  on  the  ground  of  mere  inadequacy 
of  price,  where  there  had  been  no  fraud,  concealment,  or 
misrepresentation,  where  the  parties  were  adults,  and  the 
vendors  knew  as  much  of  the  property  and  its  situation  and 
value  as  the  purchaser.^  So,  where  a  transaction  of  many 
years  standing  was  sought  to  be  set  aside  on  the  ground 
of  inadequacy  of  consideration,  the  relation  between  the 
parties,  and  the  incapacity  of  the  vendor ;  relief  was  refused, 
neither  of  the  grounds  having  been  sufficiently  made  out.^ 
So,  although  a  bill  for  specific  performance  of  a  purchase  by 
auction  was  dismissed  by  Lord  Rosslyn  with  costs,  merely 
as  being  a  bad  bargain,  from  inadequacy  of  value  ;  upon  a 

1  Gregor  v.  Duncan,  2  Desaus.  636.  ^  Evans  v.  Brown,  Wight,  102. 


property ;  indeed,  from  the  fluctuation  in  prices,  owing  principally  to  the 
gambling  spirit  of  speculation  that  unhappily  now  prevails,  it  would  be  diffi- 
cult to  determine  what  is  an  inadequate  price  for  any  thing  that  is  sold ;  at 
the  time  of  the  sale,  the  buyer  probably  calculates  on  a  rise  on  the  value  of 
the  article  bought,  of  which  he  would  have  the  advantage ;  he  must  not 
therefore  complain  if  his  speculations  are  disappointed,  and  he  becomes  a 
loser  instead  of  a  gainer  by  his  bargain.  But  those,  who  from  imbecility  of 
mind  are  incapable  of  taking  care  of  themselves,  are  under  the  special  pro- 
tection of  the  law.  If  this  conveyance  could  be  impeached  on  the  ground 
of  the  imbecility  of  Fitzsimmons  only,  a  sufficient  case  has  not  been  made 
out  to  render  it  invalid ;  for  the  imbecility  must  be  such  as  would  justify  the 
jury,  under  a  commission  of  lunacy,  in  putting  his  property  and  person 
under  the  protection  of  the  Chancellor  ;  but  a  degree  of  weakness  of  intel- 
lect, far  below  that  which  would  justify  such  a  proceeding,  coupled  with 
other  circumstances,  to  show  that  the  weakness,  such  as  it  was,  had  been 
taken  advantage  of,  will  be  sufficient  to  set  aside  any  important  deed."  Per 
Lord  Wynford,  Blachford  v.  Christian,  1  Knapp,  77. 

So  it  is  said,  if  a  person  will  enter  into  a  hard  bargain  with  his  eyes  open, 
equity  will  not  relieve  him  upon  this  footing  only.  Willis  v.  Jernegan,  2 
Atk.  251.  And,  with  reference  to  this  point  of  inadequacy,  "  If  Courts  of 
Equity  were  to  unravel  all  these  transactions,  they  would  throw  every 
thing  into  confusion,  and  set  afloat  the  contracts  of  mankind."  Per  Eyre, 
Ch.  B.,  Griffith  v.  Spratley,  1  Cox,  383. 


358  LAW    OF   VENDORS   AND   PURCHASERS.  [oil.  XX. 

rehearing,  Lord  Eldon  was  of  opinion  that  .this  was  not  a 
sufficient  ground  for  refusing  specific  performance  of  a  pur- 
chase by  auction,  without  something  more,  as  fraud  or 
surprise,  &c.^ 

15.  It  is  to  be  observed,  that  a  sale  may  sometimes  be 
attended  by  circumstances,  which  will  constitute  a  good  de- 
fence against  a  bill  in  equity  for  specific  performance,  while 
at  the  same  time  they  would  not  furnish  sufficient  ground 
for  rescinding  the  contract.  Thus,  although  mere  inade- 
quacy of  price  is  not  sufficient  ground  for  setting  aside  a 
sale,  unless  the  inadequacy  be  so  gross  as  to  be,  of  itself, 
evidence  of  fraud ;  still  it  may  be  a  sufficient  ground  for 
refusing  to  enforce  specific  performance  of  the  sale.^  It  is 
said.  Courts  of  Equity  seldom  interfere  to  set  aside  contracts 
of  sale,  on  the  ground  of  inadequacy  of  price.  They  leave 
the  parties  to  their  legal  remedies.  But  when  called  on  to 
enforce  a  contract,  they  examine  into  the  consideration  to 
be  given,  its  fairness  and  equality,  and  all  the  circumstances 
connected  with  it;  and  if  any  thing  manifestly  inequitable 
appear  in  that  part  of  the  transaction,  they  will  never  lend 
their  power  to  carry  the  contract  into  execution.^  So  the 
principle  is  laid  down,  that  an  unexecuted  sale  of  land  wiU 
not  be  enforced  in  equity,  if  it  seems  unconscionable.  But, 
after  it  has  been  executed,  a  chancellor  will  not  interfere,  by 
declaring  it  void  for  that  reason  alone,  except  in  the  case  of 
an  heir  expectant.*  So  the  Court  refused  to  decree  specific 
performance  of  a  sale,  where  the  inadequacy  of  price  was 
very  great,  though  there  was  no  direct  fraud  or  imposition  ; 
the  seller  being  a  young  man,  just  of  age,  ignorant  of  the 
real  value  of  the  land,  and  having  acted  somewhat  precipi- 
tately, on  being  urged.^  So  it  is  held,  that,  although  mere 
inadequacy  of  price  is  not  a  sufficient  ground  for  equity  to 
refuse  its  assistance ;  yet,  if  an  unreasonable  contract  be  not 

1  White  ('.  Damon,  7  Ves.  30.     (See        ^  Rodman  v.  Lilley,  1  Saxt.  320. 
a  criticism  upon  this  case,  in  Seymour        *  Davidson  v.  Little,  22  Penn.  24.5. 

w.  Delancey,  6  Johns.  Ch.  222.)  ^  ClitheralL  y.   Ogilvie,    1   Desaus. 

2  Osgood  V.  Franklin,  2  Johns.  Ch.  1,    250. 
23. 


CH.  XX.]  INCAPACITY,    ETC.  359 

performed  according  to  its  letter,  equity  will  not  interfere  ; 
and  this  whether  it  was  unreasonable  when  made,  or  be- 
comes so  afterwards,  through  fault  of  the  plaintiff;  as  where 
a  very  great  change  occurs  in  the  value  of  the  property, 
through  the  vendor's  fault.^ 

16.  While  a  vendor  may  be  prejudiced  and  claim  relief  by 
reason  of  inadequacy  of  consideration,  the  vendee,  on  the 
other  hand,  may  seek  redress  on  account  of  excess  in  the 
price  paid  or  agreed  to  be  paid.  Upon  this  subject  it  is 
held,  that  excess  of  price  over  value,  df  the  contract  be  free 
from  imposition,  is  not  of  itself  sufficient  to  prevent  a  decree 
for  specific  performance  ;  but  is  an  ingredient  which,  associ- 
ated with  others,  will  contribute  to  prevent  the  interference 
of  a  Court  of  Equity .^  (a)  Thus,  where  a  written  agree- 
ment is  entered  into  for  the  purchase  of  an  estate  at  a  price 
far  beyond  its  value,  but  without  any  circumstances  of  fraud 
or  surprise,  the  Court  will  not  decree  a  specific  performance 
of  such  a  contract ;  but,  on  the  other  hand,  will  not  rescind 
it.^  But  where  a  person  deeply  in  debt,  in  order  to  obtain  a 
loan  of  money,  agreed  to  purchase  a  tract  of  land  at  more 
than  double  its  value,  and  give  a  mortgage  upon  other 
property  to  secure  the  loan,  and  part  of  the  purchase-money, 
the  vendor  having  notice  of  the  purchaser's  necessities ;  held, 
equity  would  rescind  the  contract.^  (b) 

1  Garnett  v.  Macon,  6  Call,  308.  ^  Day  v.  Newman,  2  Cox,  77. 

"  Cathcart  v.  Robinson,  5  Peters.  264.         *  Hough  v.  Hunt,  2  Ham.  502. 

(a)  In  case  of  an  attempt  by  a  grantee  to  avoid  the  conveyance  as  uncon- 
scionable, from  the  excess  of  the  consideration,  or  because  there  was  a  gross 
mistake  of  all  the  parties  with  respect  to  the  condition  and  value  of  the  estate, 
it  was  said,  the  difference  must  be  such  as  would  "  shock  all  men  of  common 
intelligence  at  first  blush,  and  be  itself  a  proof  of  fraud  or  management  on 
the  part  of  the  grantors."     Per  Parker,  C.  J.,  Allen,  15  Mass.  65. 

(h)  Cases  often  occur,  in  which  there  is  a  combination  of  circumstances, 
any  one  of  which  would  tend  to  invalidate  the  sale,  though  not  of  itself 
sufficient  to  produce  that  effect ;  but  which,  when  united,  constitute  a  con- 
structive fraud,  that  renders  the  contract  voidable.  Thus  specific  perform- 
ance of  an  agreement  was  refused,  on  the  ground  of  the  want  of  specific 


360  LAW    OF    VENDORS   AND   PURCHASERS.  [cil.  XX. 

mutuality,  of  laches,  misapprehensions  in  the  party  or  parties  of  its  nature 
and  effect,  inetjuality,  improvidence,  and  other  circumstances  appearing  in 
the  case.  Hamilton  v.  Grant,  3  Dow.  33.  So  specific  performance  was 
refused  of  a  contract  improvidently  entered  into  by  ignorant  persons.  Mar- 
tin V.  Mitchell,  2  Jac.  &  Walk.  413.  But  specific  performance  was  decreed 
in  favor  of  a  purchaser,  though  no  solicitor  acted  for  the  vendor ;  and 
though  the  contract  was  executed  under  circumstances  which  might  easily 
have  led  to  fraud,  the  vendor  being  considerably  in  liquor;  no  fraud  being 
proved  in  the  vendee  or  his  agent.     Lightlbot  v.  Heron,  3  You.  &  Coll.  586. 


CH.  XXI.]  SALE   OF  EXPECTANCIES.  361 


CHAPTER  XXI. 


SALE   OP   EXPECTANCIES. 


1.  Having  in  the  last  chapter  spoken  of  implied  or  con- 
structive fraud,  as  affecting  the  validity  of  a  sale,  and  more 
especially  of  that  particular  fraud  which  consists  in  inade- 
quacy of  consideration ;  we  proceed  to  another  class  of  con- 
tracts, which  the  law  holds  to  be  invalid,  by  reason  of  the 
individual  position  or  character  of  one,  or  the  mutual  rela- 
tion of  both,  of  the  contracting  parties.  Under  this  head 
are  included,  in  the  first  place,  sales  made  by  the  holders 
of  expectant  interests,  including  remainder-men,  reversioners, 
and  heirs,  but  most  especially  the  parties  last  named,  which, 
in  the  common  course  of  things,  also  involve  inadequacy  of 
consideration  ;  and,  in  the  second  place,  sales  made  by  or  in 
behalf  of  persons  beneficially  interested  in  the  property  sold, 
to  those  charged  with  some  confidential  relation  with  refer- 
ence to  such  property.  In  the  former  case,  the  validity  of 
the  sale  is  affected  by  the  absolute  character  or  position  of 
the  vendor ;  in  the  latter  by  his  relative  position  in  respect 
to  the  vendee. 

2.  Mr.  Sugden  says,'  "  in  treating  of  inadequacy  of  price, 
we  must  be  careful  to  distinguish  the  cases  of  reversionary 
interests,  the  rules  respecting  which,  especially  where  an  heir 
is  the  vendor,  depend  upon  principles  applicable  only  to 
themselves,  and  not  easily  definable.  The  heir  of  a  family 
dealing  for  an  expectancy  in  that  family,  is  distinguished 
from  ordinary  cases,  and  an  unconscionable  bargain  made 
with  him,  is  not  only  to  be  looked  upon  as  oppressive  in  the 
particular  instance,  and  therefore  avoided,  but  as  pernicious 

1  1  Vend.  &  P.  369. 
31 


362  LAW    OF   VENDORS    AND   I'URCIIASERS.  [CH.  XXI. 

in  principle,  and  therefore  repressed.    There  are  two  powerful 
reasons  why  sales  of  reversions  by  heirs  should  be  discoun- 
tenanced ;  the  one,  that  it  opens  a  door  to  taking  undue 
advantage  of  an  heir  being  in  distressed  and  necessitous 
circumstances,  which  may,  perhaps,  be  deemed  a  private 
reason ;  the  other  is  founded  on  public  policy,  in  order  to 
prevent  an  heir  from  shaking  off  his  father's  authority,  and 
feeding  his  extravagances  by  disposing  of  the  family  estate." 
3.  Upon  the  same  subject,  Judge  Story  remarks  :  "  Relief 
has  been  constantly  granted  in  equity,  in  what  are  called 
catching-  bargains,  with   heirs,  and,  in  modern  times,  rever- 
sioners and  expectants,  in  the  life  of  their  parents  or  other 
ancestors,  or   during    the    continuance   of  prior   particular 
estates.     Many,  and  indeed  most  of  the  cases,  have  been 
compounded  of  all  or  every  species  of  fraud ;  there  being 
sometimes  proof  of  actual  fraud,  which  is  always  decisive. 
There  is  always  fraud  presumed  or  inferred  from  the  circum- 
stances or  conditions  of  the  parties  contracting ;  weakness 
on  one  side,  usury  on  the  other,  or  extortion  or  advantage 
taken  of  that  weakness.     Generally,  there  has  been  deceit 
upon  third  persons ;  the  father  or  other  ancestor  has  been 
kept  in  the  dark,  and  thereby  misled  and  seduced  to  leave  his 
estate,  not  to  his  heir  or  family,  but  to  a  set  of  artful  persons, 
who  have  divided  the  spoil  beforehand.      The  doctrine  is 
founded  in  part  upon  the  policy  of  maintaining  parental  and 
quasi  parental  authority,  and  preventing  the  waste  of  family 
estates,  as  well  as  of  guarding  distress  and  improvidence 
against  calculating  rapacity.     Equity  treats  parties  in  this 
situation  almost  like  infants,  incapable  of  contracting ;  and, 
although  formerly  undue  advantage  must  be  shown  to  have 
been  taken,  it  now  requires  the  purchaser  to  make  good  the 
bargain,  that  is,  not  merely  to  show  the  absence  of  fraud, 
but  payment  of  a  full  consideration.     The  Court  will  relieve 
upon  the  general  principle  of  mischief  to  the  public  without 
requiring  any  particular  evidence  of  imposition,  unless  the 
contract  is  shown  to  be  above  all  exception.     Years  do  not 
seem  to  make  much  difference  in  the  case  of  expectant  heirs, 


CH.  XXI.]  SALE   OF   EXPECTANCIES.  363 

since  the  aim  of  the  rule  is  principally  to  prevent  imposition 
upon  ancestors.  And  the  same  rule  applies,  it  seems,  to 
reversioners  and  remainder-men,  if  necessitous,  distressed, 
and  embarrassed.' 

4.  The  doctrine  upon  this  subject,  involving  other  transac- 
tions with  heirs  besides  agreements  for  the  sale  of  their 
expectant  interests,  has  been  stated  by  the  Supreme  Court 
in  Massachusetts,  as  foUows  :  When  an  heir  gives  a  bond, 
on  receiving  a  sum  of  money,  to  pay  a  larger  sum,  exceeding 
legal  interest,  upon  the  death  of  his  ancestor,  if  the  heir 
shall  be  then  living ;  if  there  is  only  a  reasonable  indemnity 
for  the  hazard,  it  may  be  enforced  at  law.  But,  if  his  neces- 
sities are  taken  advantage  of,  he  is  relieved  as  against  an 
unconscionable  bargain,  on  payment  of  principal  and  interest. 
So,  when  one  having  a  reversion  or  remainder  contracts  to 
seU  it,  on  becoming  possession,  for  money  paid  at  the  time 
of  the  bargain,  a  similar  rule  is  adopted.  Here  there  may 
be  a  computation  of  the  risk,  as  involved  in  the  continuance 
of  the  preceding  estate ;  and  the  bargain,  like  that  before 
mentioned,  may  be  relieved  against,  if  unconscionable.  K 
the  reversion  or  remainder  be  actually  conveyed,  equity 
alone  can  give  relief,  unless  there  were  absolute  fraud.  But 
a  contract  made  by  an  heir  to  convey  on  the  death  of  his 
ancestor,  living  the  heir,  a  certain  undivided  part  of  what 
shall  come  to  the  heir  by  descent,  distribution,  or  devise,  is 
a  fraud  upon  the  ancestor,  productive  of  public  mischief, 
and  moreover,  in  the  nature  of  a  wager ^  without  furnishing 
any  means  of  computing  the  risks,  &c.,  as  to  the  amount 
of  the  property  and  the  value  of  the  inheritance,  and  is 
therefore  void  both  in  law  and  equity .^ 

5.  The  query  has  been  suggested,  whether  every  vendor  of 
an  expectant  interest  is  not  to  be  regarded  in  equity  as  a 
young  heir,  dealing  for  his  expectancy.  But  it  is  stated  to 
be  clear,  that  very  anxious  protection  is  extended  by  equity 

1  1  Story,  Eq.  327,  333.  v.  Smith,  9  How,  55  ;  Hallett  v.  Collins, 

2  Per  Parsons,    C.    J.,    Bovnton   v.     10,  174. 
Hubbard,  7  Mass.  119, 122.  See  Wheeler 


# 


364  LAW   OF  VENDORS  AND   PURCHASERS.  [CH.  XXI. 

to  all  persons  selling  expectant  interests,  whether  they  stand 
in  the  relation  of  expectant  heirs  or  not,  and  trivial  circum- 
stances, added  to  inadequacy  of  price,  are  sufficient  to  set 
aside  such  sales.^  Chancellor  Desaussure  says  :  "  There  is 
a  distinction  made  between  the  cases  of  young  heirs  selling 
expectancies,  and  of  others  which  I  am  not  disposed  to 
support.  It  is  said,  that  the  former  are  watched  with  more 
jealousy,  and  more  easily  set  aside  than  others,  on  principles 
of  public  policy.  This  was  certainly  true  at  first;  but  the 
eminent  men  who  have  sat  in  chancery,  have  gradually 
applied  the  great  principles  of  equity  on  which  relief  is 
granted  to  every  case  where  the  dexterity  of  intelligent  men 
had  obtained  bargains  at  an  erroneous  and  unconscientious 
disproportion,  from  the  ignorance,  the  weakness,  or  the  ne- 
cessities of  others,  whether  young  heirs  or  not."  ^ 

6.  Protection  is  said  to  be  afforded  in  equity  to  an  ex- 
pectant heir  or  other  reversioner,  dealing  for  his  expectancy, 
as  approaching  to  an  incapacity  to  contract ;  as  in  case  of  a 
very  advantageous  purchase,  though  without  fraud,  which 
would  afford  no  ground  for  relief  between  persons  standing 
precisely  equal ;  and  d  fortiori  in  case  of  an  unconscionable 
bargain.^  So,  in  order  to  support  a  bill  in  equity  by  a  pur- 
chaser for  specific  performance,  where  the  party  contracting 
to  sell  was  an  expectant  heir,  the  plaintiff  must  show  ade- 
quacy of  consideration  in  limine.  Whether,  in  case  of  failure 
to  do  so,  the  bill  will  be  dismissed  with  or  without  costs, 
depends  on  the  circumstances  of  each  case.^  So  the  pur- 
chase of  a  reversion  from  an  heir,  in  the  life  of  his  father,  at 
an  under-value,  was  set  aside,  though,  if  the  heir  had  died 
before  his  father,  the  purchaser  would  have  lost  all  his 
money .^  So,  whether  the  heirship  be  presumptive  or  ap- 
parent,  it  is  held  not  to  be  an  interest  or  possibility  capable 

'  M'Kinney    v.    Pinckard,  2   Leigh,  w.  DeFaria,  17  Ves.  20;  Berny  w.  Pitt, 

149.  2  Vern.  14. 

2  Butler  V.  Hasiiell,  4  Desaus.  687.  *  %le    v.   Brown,    13   Price,   758  ; 

3  Peacock  v.  Evans,  16  Ves.  512;  Bawtree  v.  Watson,  3  My.  &  K.  339. 
Eyle  V.  Brown,  13  Price,  758  ;  Bawtree  See  Bernal  v.  Donegal,  3  Dow.  133. 

V.  Watson,  3  My.  &  K.  339;  Gowlancl        ^  Nott  v.  Hill,  1  Vern.  167. 


CH.  XXI.]  SALE  OF  EXPECTANCIES.  365 

of  being  made  the  subject  of  contract.^  So,  if  an  heir  sells 
his  reversion,  in  the  life  of  his  father,  at  an  under-value,  the 
Court  will  not,  in  favor  of  such  purchaser,  decree  a  specific 
performance  of  a  covenant  for  further  assurance.^  So  a  sale 
by  an  heir  apparent  of  interests  in  possession  and  reversion 
was  set  aside,  the  consideration  being  inadequate,  and  ad- 
vantage having  been  taken  of  the  vendor's  embarrassments.^ 

7.  The  plaintiff,  having  a  remainder  in  tail,  and  being 
distressed,  conveyed  two  manors  of  the  yearly  value  of 
X300,  expectant  on  an  estate  for  life  in  his  uncle,  for  the 
sum  of  £300,  to  the  defendant,  his  heirs  and  assigns,  from 
and  after  the  decease  of  the  uncle  without  issue  male.  The 
plaintiff  brings  a  bill  to  be  relieved  against  this  bargain  as 
unconscionable  ;  and  the  defendant  files  a  cross  bill  for 
specific  performance.  Lord  Hardwicke  held  it  a  void  con- 
veyance, even  in  point  of  law ;  for,  as  the  plaintiff  had  a 
remainder  in  tail  only,  he  could  not  dispose  of  the  inheri- 
tance. Therefore,  the  cross  bill  was  dismissed,  and  the  con- 
veyance set  aside  as  a  catching  bargain  against  a  necessitous 
heir.* 

8.  A  reversioner  for  life  of  a  leasehold  estate  sold  it,  the 
purchaser  obtaining "  only  the  opinion  of  an  actuary  as  to  its 
value,  without  taking  any  steps  to  ascertain  its  market  value 
in  reference  to  locality.  Upon  a  suit  by  the  vendor,  the  sale 
was  set  aside  for  inadequacy  of  price,  the  defendant  not 
showing  that  he  gave  the  fair  market  value.^ 

9.  The  rule  under  consideration  being  founded  chiefly 
upon  the  ground  that  such  contract  is  a  fraud  on  the  ances- 
tor ;  it  has  been  held  that  a  covenant,  by  an  heir  expectant, 
that  he  will  convey  the  estate  which  shall  come  to  him  by 
descent  or  otherwise,  is  valid,  if  made  with  the  consent  of 
the  ancestor,  and  for  a  sufficient  consideration,  and  without 
advantage  being  taken  of  the  covenantor.     Thus,  upon  an 

1  Cai-leton  v.  Leighton,  3  Mer.  667.  *  Barnardiston  v.  Lingood,  2  Atk. 
See  Coles  v.  Trecotliick,  9  Ves.  234.  134. 

2  Johnson  v.  Nott,  1  Vern.  271.  ^  Edwards  v.  Burt,  15  Eng.  Law  & 

3  Portmore  v.  Taylor,  4   Sim.  182;  Eq.434. 
Gowland  v.  DeFaria,  17  Ves.  20. 

31* 


366  LAW   OF  VENDORS   AND   PURCHASERS.  [CII.  XXI. 

action  of  covenant  broken,  it  appeared  that  the  defendant 
executed  a  deed,  " in  consideration  of  ^1,400  paid  me  by" 
(the  plaintiffs)  "  my  brothers,  as  well  as  for  the  purpose  of 
enabling  my  father  (E.  F.)  to  settle  his  estate,  as  far  as  may 
be,  during  his  lifetime,  among  his  children  and  heirs  at  law;" 
proceeding  to  convey  all  present  and  future  interest  in  the 
father's  estate,  and  to  covenant  that  the  grantor  will  claim, 
&c.,  no  part  thereof,  and  on  demand  will  execute  to  the 
plaintiffs  any  instrument  necessary  to  carry  this  deed  into 
effect.  It  appeared  that  the  deed  was  made  with  the  knowl- 
edge and  consent  of  the  father.  Held,  though  nothing 
passed  by  the  deed  in  the  father's  lifetime,  there  being  then 
nothing  to  grant,  yet  the  covenant  to  make  further  assur- 
ances might  be  valid,  if  made  on  good  consideration,  with- 
out oppression  or  advantage  taken,  and  with  the  father's 
knowledge  and  consent.  Parker,  C.  J.,  says  ;  "  In  such  case, 
there  is  no  fraud  upon  him  (the  father)  nor  imposition  upon 
the  heir  who  covenants,  and  no  injury  to  the  public,  which 
are  the  grounds  on  which  such  contracts  are  set  aside  in 
chancery.  Here  a  full  and  adequate  consideration  was  paid 
to  the  defendant,  who  was  desirous  of  receiving  that  portion 
of  his  father's  estate,  which  in  the  course  of  law  would  fall 
to  him.  With  this,  he  goes  abroad  to  enter  upon  business, 
with  a  money  capital.  The  father,  acquiescing  in  his  wishes, 
assents  to  the  purchase  made  by  two  other  sons,  thinking 
this  the  best  mode  of  providing  for  the  wants  of  the  son 
who  is  to  leave  the  paternal  roof  and  seek  his  fortune  else- 
where. There  seems  to  be  nothing  against  good  policy  in 
this,  and  it  is  not  opposed  by  any  case  that  has  been 
cited."! 

10.  So  a  release  by  an  heir  apparent  of  his  expectancy, 
with  a  covenant  that  neither  he, nor  those  claiming  under 
him  will  ever  claim  any  right  in  the  same,  is,  if  made  fairly 
and  with  the  consent  of  the  ancestor,  a  bar  to  the  releasor's 
claim  thereto  by  descent  or  devise,  after  his  ancestor's  death. 

1  Fitch  V.  Fitch,  8  Pick.  480,  483. 


CH.  XXI.]  SALE   OF  EXPECTANCIES.  367 

And  such  covenant  runs  with  the  land,  and  protects  the 
heurs  and  assigns  of  the  covenantee.  So  a  release  of  "  all 
the  right,  title,  or  interest,"  which  the  releasor  "  has,  or  may 
have,  in  or  unto  the  estate  of  his  father,  whether  the  same 
may  fall  to  him  by  will  or  heirship,"  includes  future  rights  to 
be  acquired  by  the  releasor ;  and  a  covenant  never  to  make 
claim  to  "  the  premises,"  is  a  covenant  never  to  make  claim 
to  the  estate  of  the  father.  More  especially,  where  such 
deed  was  made  after  the  will,  by  virtue  of  what  is  termed 
by  the  Court  "  a  family  arrangement,"  to  which  the  grantor, 
his  brother,  (the  grantee,)  and  their  father  were  parties  ;  and 
it  was  left  to  referees  to  decide  what  should  be  paid  by  the 
grantee  to  the  grantor ;  and  the  award  was  made,  a  note 
given  for  the  sum  awarded,  and  afterwards  paid ;  the  trans- 
action was  held  not  to  be  invalid.^  (a) 

11.  In  cases  of  this  nature,  the  general  rule  is,  to  grant 
relief  on  payment  of  principal,  interest,  and  costs,  the  pur- 
chaser being  considered  as  a  mortgagee.  But,  in  general, 
his  bill  to  establish  the  purchase  will  be  dismissed  with  costs, 
except  of  depositions  used  by  the  other  party .^  Thus  the 
grant  of  a  reversionary  rent-charge,  after  the  death  of  the 
plaintiff's  father  (who  was  old  and  infirm)  upon  unreason- 
able terms,  was  set  aside,  but  to  remain  as  security  for  the 
money  really  advanced,  and  costs  to  be  paid  as  in  redeeming 
a  mortgage.^ 

12.  Lapse  of  time  may  be  a  bar  to  relief.  Thixs  a  ten- 
ant for  life,  who  was  also  devisee  in  trust  in  remainder 
for  the  children  of  the  testator,  with  a  power  of  appointment 
by  will  amongst  them,  purchased  and  obtained,  from  the 
objects  of  the  power,  a  release  of  their  reversion  at  an  under- 
value, and  devised  the  estate  to  her  son  in  fee,  charged  with 

1  Trull  r.  Eastman,  3  Met.  121.    Ace.        ^  Peacock  v.  Evans,  16  Ves.  512. 
Edwards  v.  Burt,  15  Eng.  L.  &  Eq.  434.        ^  Gwynne  v.  Heaton,  1  Bro.  C.  C.  1. 

(a)  It  seems  there  is  the  same  exception  to  the  rule,  -where  the  party  is 
a  reversioner,  &c.,  and  the  bargain  is  known  and  not  objected  to  by  the 
prior  tenant.     King  v.  Hamlet,  2  My.  &  K.  473-4. 


368  LAW  OF  VENDORS  AND  rURCHASERS.      [CH.  XXI. 

debts  and  legacies.  The  son  took  possession  and  paid  off 
the  legacies  and  charges.  Fourteen  years  and  a  half  after 
the  death  of  the  tenant  for  life,  and  seventeen  years  after 
the  purchase  of  the  reversion,  the  assignee  of  one  of  the 
vendors,  an  object  of  the  power  who  had  become  insolvent, 
filed  his  bill  to  set  aside  the  sale.  Held,  the  lapse  of  time 
was  a  bar,  notwithstanding  the  poverty  of  the  cestui  que 
trust. ^ 

13.  But  a  reversionary  grant  from  a  person  in  the  situation 
of  an  expectant  heir,  though  made  thirty-four  years,  and  con- 
firmed by  a  subsequent  deed,  was  set  aside  ;  being  obtained 
by  fraud  and  imposition,  the  party  confirming  being  ignorant 
of  his  rights,  and  the  length  of  time  satisfactorily  accounted 
for.  The  same  principle  applies  where  a  party,  though 
apprised  of  his  rights,  is  compelled  to  accede  to  the  terms 
from  distress  and  poverty,  occasioned  by  the  party  procuring 
the  confirmation.^ 

14.  Transactions  of  this  nature  may  undoubtedly  be  con- 
firmed by  express  ratification,  as  well  as  delay,  on  the  part  of 
the  injured  party.  But,  where  grants  in  reversion  were  ob- 
tained by  an  agent  and  trustee  from  his  employers  and 
cestuis  que  trusts,  by  fraud  and  misrepresentation ;  and  after- 
wards assigned  for  valuable  consideration  to  a  purchaser 
having  notice  of  the  facts  and  the  nature  of  the  title ;  the 
conveyances  were  set  aside,  it  being  considered  that  the 
fiduciary  relations  stUl  existed,  the  grantor  being  ignorant  of 
his  rights,  and  the  circumstances  showing  a  continuation  of 
the  fraud  and  not  a  confirmation.^  (a) 

1  Koberts  v.  Tunstall,  4  Hare,  257.  ^  Dunbar  v.   Tredennick,  2   Ball  & 

"  Roche  V.  O'Brien,  1  Ball  &  Bea.     Boa.  304. 
330. 

(a)  Protection  has  been  extended  to  an  heir  even  against  the  act  of  his 
ancestor.  Thus  if  a  father,  possessed  of  an  advowson,  which  he  apparently 
designed  for  his  son,  be  prevailed  on,  when  in  an  infirm  state  of  mind,  to 
enter  into  articles  for  the  sale  of  it ;  equity  will  not  compel  specific  perform- 
ance, although  there  is  no  imposition  or  fraud  imputable  to  the  purchaser. 
Bell  V.  Howard,  9  Mod.  302. 


CH.  xxn.] 


TRUST,   ETC. 


369 


CHAPTER  XXII. 


CONSTRUCTIVE   FRAUD. — TRUST,   ETC. 


1.  General  principle  o{  confidential  re- 
lations. 
6.  Agents. 
10.  Trustees. 
16.  Attorneys,  solicitors,  &c. 


24.  Executors,  guardians,  &c. 
26.  Miscellaneous  trusts  ;  and  excep- 
tions and  limitations  to  the  general  rule. 
37.  Remedies. 


1.  It  remains  to  consider  another  kind  of  implied  or  con- 
structive fraud,  which  invalidates  a  sale  of  real  property ; 
to  wit,  the  fraud  arising  from  the  mutual,  confidential  rela- 
tion of  the  contracting  parties  ;  making  their  interests  iden- 
tical, and  rendering  it  both  adverse  to  public  policy  and 
daihgerous  to  the  rights  of  one  of  the  parties,  to  sanction 
any  transaction  that  places  them  in  an  opposing  or  hostile 
attitude  with  reference  to  each  other.  This  class  of  persons 
is  said  ^  to  comprise  agents,  arbitrators,  attorneys,  assignees 
of  bankrupts,  auctioneers,  commissioners,  creditors  or  others 
confidentially  employed  in  reference  to  a  bankrupt's  estate, 
trustees,  and  mortgagees  in  trust  for  sale. 

2.  The  general  principle  upon  the  subject  is  thus  stated 
by  a  late  elementary  writer :  "  It  may  be  regarded  as  a  pre- 
vailing principle  of  the  law,  that  an  agent  must  not  put 
himself,  during  his  agency,  in  a  position  which  is  adverse  to 
that  of  his  principal.  For  even  if  the  honesty  of  the  agent 
is  unquestioned,  and  if  his  impartiality  between  his  own 
interest  and  his  principal's  might  be  relied  upon,  yet  the 
principal  has  in  fact  bargained  for  the  exercise  of  all  the 
skill,  ability,  and  industry  of  the  agent,  and  he  is  entitled  to 
demand  the  exertion  of  all  this  in  his  own  favor.  This 
principle  is  recognized  to  some  extent  at  law ;   but  most 

'  Chit,  on  Contr.  301. 


370  LAW   OF   VENDOllS   AND   PURCHASERS.  [CII.  XXH. 

cases  of  this  kind  come  before  Courts  of  Equity.  At  one 
time,  it  was  understood  to  be  necessary  to  show  that  a 
trustee  had  taken  undue  advantage  of  his  position,  in  order 
to  set  aside  a  purchase  by  him  of  that  which  he  was  a 
trustee  to  seU.  But  this  is  not  so  now.  At  present,  the  rule 
in  equity  appears  to  be,  that  any  act  by  an  agent  with 
respect  to  the  subject-matter  of  the  agency  injurious  to  his 
principal,  may  be  avoided  by  the  principal.  If  an  agent  to 
sell  become  the  purchaser,  or  if  an  agent  to  buy  be  himself 
the  seller,  a  Court  of  Chancery,  upon  the  timely  application 
of  the  principal,  will  presume  that  the  transaction  was  inju- 
rious, and  will  not  permit  the  agent  to  contradict  this  pre- 
sumption ;  unless,  indeed,  he  can  show  that  the  principal, 
when  furnished  with  all  the  knowledge  he  himself  possessed, 
gave  him  previous  authority  to  be  such  buyer  or  seller,  or 
afterwards  assented  to  such  purchase  or  sale.''^ 

8.  The  principle  is  held  to  be  more  decisively  applicable, 
where  breach  of  trust  is  combined  with  other  causes  for 
avoiding  the  sale. 

4.  Bill  to  set  aside  a  sale.  The  plaintiff,  tenant  for  life  of 
the  premises,  under  a  marriage  settlement,  without  impeach- 
ment of  waste,  having  become  involved  in  debt  and  greatly 
embarrassed,  in  May,  1801,  conveyed  all  his  estate,  &c.,  in 
the  premises  to  trustees,  for  the  purpose  of  sale  (subject  to 
a  rent  charge  of  <£150  per  annum,  reserved  to  himself,)  for 
the  benefit  of  such  of  his  creditors  as  should  execute  the 
deed.  Immediately  afterwards,  he  went  to  reside  in  the  Isle 
of  Man,  for  the  manifest  and  avowed  purpose  of  personal 
protection  from  his  still  unsatisfied  creditors.  The  trustees 
thereupon  employed  a  land  surveyor,  for  the  purpose  of 
measuring  and  valuing  the  plaintiff's  interest  in  the  premises, 
preparatory  to  putting  them  up  for  sale.  The  surveyor  was 
assisted  throughout  by  his  son,  the  defendant,  who  had  very 
recently  been  his  father's  partner  in  the  business,  himself 
also  a  land  surveyor  and  auctioneer,  and  had  great  share 

1  1  Pars,  on  Contr.  74-5. 


CH.  XXII.]  TRUST,   ETC.  371 

in  making  the  valuation,  by  measuring  and  mapping  the 
estate,  &c.  The  result  of  that  valuation  (completed  in  De- 
cember, 1801,)  was  an  estimate,  stating  the  annual  value  to 
be  ^£232  2s.  5d.  On  the  6th  of  February  following,  the 
estate  was  put  up  to  sale  by  auction,  and  the  defendant 
employed  as  auctioneer.  The  estate  not  being  then  sold,  as 
no  one  had  offered  any  bid,  the  defendant,  on  the  next  day, 
proposed  to  the  trustees  to  purchase  it  himself  for  X500. 
They  immediately  acceded  to  the  proposal,  and  let  the  de- 
fendant into  possession  on  the  15th  of  April,  but  did  not 
require  of  him  to  pay  the  purchase-money  till  the  5th  of 
March,  1803,  when  the  conveyance  to  him  -v^as  executed, 
and  they  then  received  it  without  taking  or  requiring  inter- 
est. That  conveyance  was  soon  afterwards  executed  by  the 
plaintiff,  who  came  from  the  Isle  of  Man  for  that  purpose, 
upon  receiving  a  letter  from  one  of  the  trustees,  informing 
him  that  if  he  did  not  execute  the  deed  the  annuity  of  X150 
would  be  no  longer  paid.  At  the  time  of  sale  there  was  a 
quantity  of  valuable  timber  on  the  estate,  said  to  be  worth 
from  £300  to  £700,  which  had  not  been  taken  into  the 
above  estimate.  Bill  to  set  aside  the  purchase,  as  made  by 
a  person  of  skill  in  business,  employed  confidentially  to  value 
and  sell  the  estate  for  the  vendor's  advantage ;  for  knowl- 
edge in  consequence  acquired  by  him,  fraudulent  abuse  of 
trust,  inadequacy  of  price,  and  duress  and  coercion.  Upon 
these  several  grounds  taken  in  connection,  and  some  of 
which,  it  was  said  by  the  Court,  would  of  themselves  have 
been  sufficient  ground  for  its  action,  the  sale  was  sej;  aside. 
Lapse  of  time  was  held  to  be  no  bar,  in  consideration  of 
the  plaintiff's  having  been,  from  poverty  and  embarrass- 
ments, non  compos  sui} 

5.  So,  where  a  conveyance  of  an  estate,  obtained  upon-  a 
pretended  purchase  from  an  aged  and  illiterate  man,  by  a 
person  who  stood  towards  him  in  a  confidential  position,  was 
set  aside ;  the  Court,  being  of  the  opinion  that  there  was  in 

'  Oliver  v.  Court,  8  Price,  127. 


372  LAW    OF   VENDORS    AND   PURCHASERS.  [CH.  XXII. 

fact  no  purchase,  refused  to  give  the  defendant  a  decree  for 
an  account  of  moneys  paid  by  or  owing  to  him,  which  he 
alleged  (but  failed  to  prove)  was  the  consideration  agreed 
upon  for  such  purchase  and  conveyance.^ 

6.  The  confidential  relations,  which  are  understood  to  be 
violated  by  transactions  of  the  nature  now  under  considera- 
tion, are  those  of  agency  and  trust.  These  are  to  some 
extent  identical;  ail  agents  being  in  a  certain  sense  trustees; 
and  all  trustees,  agents.  It  has  been  said,  however,  that 
"  the  rule  is  applied  not  so  much  to  those  who  act  as  ser- 
vants, or  instruments  for  some  particular  things,  as  to  persons 
whose  employment  is  rather  a  trust  than  a  mere  service."  ^ 
But  agents,  from  the  very  nature  of  their  employment  stand- 
ing in  a  confidential  capacity,  are  clearly  subject  to  the 
rule,  [a)  Thus,  the  defendant,  being  tenant  of  a  manor,  and 
being  employed  by  the  plaintiff,  and  having  agreed,  to  pur- 
chase it  for  him,  purchased  it  in  his  own  name.  He  after- 
wards let  the  plaintiff  into  the  purchase  by  a  mutual  deed, 
which,  however,  omitted  many  things  comprised  in  the  pur- 
chase deed.  Upon  a  bill  for  relief  against  such  omissions, 
decree  for  the  plaintiff.^ 

7.  Decree  setting  aside  a'purchase  by  an  agent  from  his 

1  Wilkinson  y.  Fowkes,  15  Eng.  Law         ^  \  Pars,  on  Contr.  75. 
&  Eq.  163.  ^  Nelson  v.  Nelson,  Nels.  Cha.  Eep.  7. 


(a)  It  is  said,  the  principal  bargains  for  the  exercise  of  the  disinterested 
skill,  diligence,  and  zeal  of  the  agent,  for  his  own  exclusive  benefit.  Story 
on  Agency,  §  246.  See  Smith's  Merc.  L.  93.  So  also,  it  may  be  correctly 
said,  with  reference  to  Christian  morals,  that  no  man  can  faithfully  serve 
two  masters,  whose  interests  are  in  conflict.  lb.  §  210.  And  the  doctrine, 
though  chiefly  applied  in  equity,  seems  to  be  equally  well  settled  at  law. 
Taylor  v.  Salmon,  2  Mees.  &  Cr.  139. 

Upon  this  ground  it  has  been  even  held,  that  a  memorandum  made  and 
signed  by  a  seller,  at  the  request  of  the  purchaser,  will  not  bind  the  latter, 
as  a  memorandum  within  the  Statute  of  Frauds.  Wright  v.  Dannah,  2 
Camp.  203.  Upon  the  same  ground,  an  agent,  who  discovers  a  defect  in  his 
principal's  title  to  lands,  cannot  misuse  it  to  acquire  a  title  for  himself,  but 
will  be  held  a  trustee  for  his  principal.    Ringo  v.  Binns,  10  Pet.  269. 


CH.  XXII.]  TRUST,   ETC.  373 

principal.  A  reconveyance,  and  the  usual  accounts  of  rents 
and  purchase-money  were  directed,  making  allowance  for 
substantial  repairs  and  lasting  improvements.  The  defend- 
ant having  sold  and  conveyed  part  of  the  property,  pendente 
lite,  and  died  before  the  accounts  were  completed ;  a  supple- 
mental bill  was  filed  against  the  purchasers,  and  the  heir 
and  personal  representatives  of  the  defendant,  charging  that 
the  purchasers,  in  case  of  eviction,  claimed  compensation 
out  of  his  estate;  and  the  conveyances  pendente  lite  were 
set  aside.  Held,  the  purchasers  were  entitled  in  this  suit,  as 
against  their  co-defendants,  the  personal  representatives  of 
the  original  defendant,  to  an  order  for  repayment  of  their 
purchase-money,  and,  as  against  the  plaintiff,  to  an  allow- 
ance for  substantial  repairs  and  lasting  improvements,  but 
to  no  greater  relief.  Also,  that  the  heir  and  personal  repre- 
sentatives were  proper  parties.^ 

8.  An  agent  employed  to  sell  estates  took  them  for  him- 
self, under  color  of  a  fictitious  purchase,  and  sold  a  part. 
He  also  fraudulently  prevailed  on  his  principal  to  execute  a 
lease  at  a  losing  rent.  After  his  death,  an  inquiry  was 
directed,  to  ascertain  the  real  value,  according  to  which  his 
estate  was  to  be  charged  ;  the  principal  having  an  option  to 
take  what  remained  unsold  ;  and  the  agent's  estate  was 
charged  with  the  loss  arising  from  the  lease.^ 

9.  Four  persons  agree  to  purchase  of  the  State  a  trp,ct  of 
land,  give  their  joint  note  for  the  consideration,  and  take  a 
writing  from  the  agent  of  the  State  to  make  a  deed  on  de- 
mand ;  they  also  authorize  one  of  their  number,  in  writing, 
to  take  a  deed  of  the  same,  and  sell  it  for  the  whole,  each 
being  entitled  to  the  extent  of  one  fourth  by  their  private 
agreement.  Held,  that  one  has  an  interest  in  the  whole  as 
agent,  besides  his  interest  as  principal  in  one  fourth.  And,  if 
he  gets  a  deed  from  the  State  for  one  eighth,  running  directly 
to  a  purchaser  of  one  eighth,  instead  of  one  to  himself,  and 

'  Trevelyan  v.  White,  1  Beav.  588.  '^  Hardwicke  v.  Vernon,  4  Ves.  411  ; 

14  Ves.  504, 

32 


374  LAW  OF  VENDORS  AND  PURCHASERS.    [CH.  XXII. 

then  from  himself  to  the  purchaser,  ho  is  answerable  for  the 
whole  consideration  received,  on  tlie  sale  being  rescinded. 
But  if,  after  the  sale,  he  divided  the  whole  of  it  between  the 
other  throe  owners,  concludiii<^  to  keep  as  his  own  sliare  tiie 
other  one  fourth  of  the  land,  having  sold  in  all  to  various 
persons  three  fourths  of  it ;  the  other  three  are  responsible  to 
refund,  in  aid  of  him,  the  one  third  each  received.' 

10.  The  most  numerous  class  of  cases,  falling  under  this 
general  head,  is  that  of  trusts,  technically  so  called ;  where 
one  party  is  not  merely  employed  by  another  to  perform  an 
act  in  relation  to  property  for  him,  but  is  entrusted  with  the 
property  itself.  Under  these  circumstances,  as  has  been 
stated,  it  is  the  general  rule,  that  a  trustee  shall  not  be 
allowed  to  purchase  the  trust  property  for  his  own  benefit ; 
either  directly  or  through  an  agent.  He  who  undertakes  to 
act  for  another,  in  any  matter,  shall  not  in  the  same  matter 
act  for  himself,  and  make  the  business  an  object  of  interest. 
Although  the  cestui  que  trust  be  of  age,  the  transaction 
morally  fair  and  honest,  a  higher  price  paid  by  the  trustee 
than  any  one  else  would  give,  the  estate  taken  at  an  ap- 
praisement or  in  the  name  of  a  third  person ;  it  has  been 
held  that  the  transaction  «iay  be  set  aside  by  the  cestui. 
The  trustee  purchases  subject  to  that  equity? 

11.  We  have  already  had  occasion  to  notice  (Chap.  9, 
s.  17,)  the  exception  from  the  Statute  of  Frauds  of  that  class 
of  cases,  in  which  one  person  purchases  real  estate  for  the 
benefit  of  another,  and  under  a  verbal  agreement  that  the 
latter  shall  have  the  benefit  of  the  purchase.  These  are  for 
the  most  part  sales  on  execution,  where  some  friend  of  the 
execution  debtor  interposes  to  purchase  the  property  for  his 
use.  The  violation  of  the  agreement  in  such  case  comes 
under  the  present  head  of  constructive  fraud,  [a) 

1  Doggett  V.  Emerson,  1  Woodb.  &  Ringgold  v.  Ringgold,  1  Harr.  &  G. 
M.  195,  206.  11;    Whichcote  v.   Lawrence,  3   Ves. 

■•*  Gampbell  v.  Walker,  5  Ves.  680 ;     740. 

(a)  An  agreement  of  this  nature  may  also  avoid  the  sale,  subject,  how- 
ever, to  an  equitable  claim  for  actual  outlays.     Thus  a  sherifi's  sale  was 


CH.  XXII.]  TRUST,   ETC.  375 

12.  And  the  principle  is  extended  to  other  analogous  trans- 
actions, the  effect  of  which  is  to  injure  a  debtor,  though  not 
by  violating  any  trust,  to  which  he  is  in  terms  a  party. 
Thus  the  land  of  A.  was  advertised  for  sale  on  an  execution 
in  favor  of  B.  C,  who  had  purchased  the  land,  without 
knowing  of  the  judgment  and  execution,  agreed  with  B.  who 
attended  the  sale,  that,  if  he  would  not  bid  against  hira,  he 
would  pay  B.  the  amount  of  his  execution,  and  give  him  his 
note  for  the  further  sum  of  $150,  and  B.  acceded,  and  de- 
sisted from  bidding.  Action  on  the  note  against  C,  by  an 
indorsee,  who  took  it  after  it  became  due,  with  notice.  Held, 
the  consideration  might  be  inquired  into ;  and,  being  uncon- 
scientious, and  against  public  policy,  the  note  was  void.^ 

13.  So,  where  a  judgment  and  execution,  which  had  been 
fully  paid  and  satisfied,  were  kept  on  foot  by  the  assignees 
of  the  judgment,  fraudulently,  for  the  purpose  of  speculating 
on  the  property  of  the  debtor,  of  which  the  defendants,  as- 
signees or  owners  of  such  property,  became  purchasers  at  a 
sheriff's  sale ;  they  were  decreed  to  execute  a  release  of  all 
their  title  and  interest  so  acquired,  to  the  owner  of  the  lands 
thus  fraudulently  sold  in  execution,  to  deliver  up  possession, 
and  to  pay  the  rents  and  profits,  and  damages  for  any  waste 
committed,  with  all  costs,  &lc? 

14.  Bill  in  equity.  The  plaintiff  having  purchased  at 
auction  from  D.  a  lot  of  land,  on  his  failure  to  comply  with 
the  terms  of  the  sale,  D.  entered  and  took  possession,  but, 
on  application  by  the  plaintiff,  was  enjoined  in  equity  from 

1  Jones  V.  Caswell,  3  Johns.  Cas.  29.  ^  Troup  v.  Wood,  4  Johns.  Ch.  228. 


made  to  one  who  purchased  at  the  instance  of  the  debtor,  and  conveyed  to 
a  trustee  for  the  benefit  of  the  debtor's  family.  The  mother  of  the  debtor's 
■wife  advanced  money  towards  the  purchase,  which  went  to  the  payment  of 
his  debts.  The  trustee  afterwards  paid  out  money  in  discharge  of  a  mort- 
gage, to  which  the  land  was  subject  when  sold,  and  neither  of  them  was 
accessory  to  the  fraud.  Held,  the  sale,  under  the  circumstances,  should  be 
set  aside,  but  the  money  thus  advanced  should  be  refunded,  and  the  land 
stand  as  security  for  the  payment.     McMeekin  v.  Edmund,  1  Hill,  Ch.  288. 


o76  LAW    OF   VENDORS   AND   PURCHASERS.  [CII.  XXIT. 

making  a  sale  thereof.  A  new  arrangement  was  then  made, 
by  which  D.  placed  a  warranty  deed  in  the  hands  of  P.  in 
escrow,  agreeing  that  it  should  be  surrendered  to  the  plaintiff 
on  a  certain  day,  provided  he  had  complied  with  certain 
terms  of  payment,  the  plaintiff  making  a  deposit  of  $1,000 
as  forfeit  money.  The  plaintiff  then  proceeded  to  build  on 
the  land,  but,  failing  in  his  means,  was  unable  to  comply 
with  his  agreement.  D.  then  threatened  to  sell  the  premises, 
and  the  plaintiff  filed  a  second  bill  in  equity  to  restrain  the 
sale,  and  an  injunction  was  granted,  and  an  interlocutory 
decree  passed,  that,  if  he  should  perforin  his  agreement  be- 
fore a  certain  time,  the  injunction  should  stand  continued, 
otherwise  be  dismissed.  He  failed  to  perform  his  agreement, 
and  the  bill  was  accordingly  dismissed.  Between  the  decree 
and  the  dismissal  of  the  bill,  the  plaintiff,  having  expended 
large  sums  on  the  building,  and  exhausted  his  resources, 
applied  to  E.,  one  of  the  defendants,  for  aid  to  raise  money, 
in  order  to  complete  the  building  and  discharge  the  debts ; 
and  it  was  arranged  between  them,  that  an  absolute  convey- 
ance should  be  made  by  D.  to  E.,  which  was  done.  On  the 
same  day  the  plaintiff  executed  a  release  of  all  interest  to 
E.  to  complete  the  title,  excluding  in  terms  "  all  claims  and 
demands  made  by,  through,  or  on  account  of  the  plaintiff, 
and  also  excepting  any  claims  or  demands  arising  out  of 
any  contract  made  by  or  with  the  plaintiff,"  and  admitting 
that  he  had  no  legal  or  equitable  right  in  the  same.  E.  then 
assumed  the  ostensible  ownership,  but  the  plaintiff  was  em- 
ployed in  superintending  the  erection  of  the  building,  pro- 
cured securities  to  assist  in  raising  funds,  and  also  had 
work  done  on  his  own  account.  E.  afterwards  sold  the 
premises  to  K.,  another  defendant.  The  bill  alleges  that,  at 
the  time  of  making  the  conveyance  to  E.,  although  there 
was  no  writing  to  such  effect,  it  was  understood  between  E. 
and  the  plaintiff,  that  the  premises  were  to  be  held  by  E.  in 
trust,  for  the  benefit  of  the  plaintiff;  and  that  the  conveyance 
Was  made  absolute,  solely  for  the  purpose  of  freeing  the 
premises  from  all  claims  by  or  through  the  plaintiff,  and  that 


CH.  XXTT.]  TRUST,   ETC.  377 

E.  was  only  to  receive  a  remuneration  for  his  services  and 
indemnification  for  his  expenses,  and  then  to  reconvey  to 
the  plaintiff;  and  also  that  K.  was  not  a  bond  fide  purchaser 
without  notice.  Held,  1.  That  the  circumstances  showed 
no  sufficient  motives  on  the  part  of  the  plaintiff  to  make  an 
absolute  and  unrestricted  conveyance,  but  that  they  were 
perfectly  consistent  with  the  parol  trust  set  up. 

2d.  That  the  former  decree,  not  being  a  dismissal  upon 
the  merits,  was  not  an  absolute  bar  to  a  future  suit. 

3d.  That  the  release  by  the  plaintiff,  though  absolute  in 
its  terms,  was  indispensable  to  guard  the  property  against 
his  creditors,  and  induce  capitalists  to  advance  funds,  and 
therefore  was  not  inconsistent  with  a  parol  trust ;  and  that 
the  evidence  was  irreconcilable  with  any  other  supposition, 
than  that  E.  was  acting  throughout  as  the  agent  of  the 
plaintiff'. 

4th.  That  if  E.,  knowing  that  the  plaintiff  only  intended 
that  he  should  act  as  agent,  did,  nevertheless,  intend  to  act 
for  his  own  benefit  solely,  the  concealment  of  such  a  design 
from  the  plaintiff  was  a  fraud  in  equity. 

5th.  That  this  was  a  case  of  parol  trust,  resulting  from 
agency,  and  resting  upon  honorary  obligations,  and  as  such 
equity  would  enforce  it. 

6th.  That  it  was  not  within  the  Statute  of  Frauds,  be- 
cause, 1st.  A  resulting  trust  as  to  the  plaintiff,  and  a  trust 
as  to  E.  merely  for  his  liabilities,  compensation,  and  expen- 
ditures. 2d.  A  case  of  agency.  3d.  Of  constructive  fraud. 
4th.  Of  part-performance. 

7th.  That  K.  was  not  proved  to  be  a  bond  fide  purchaser 
without  notice,  even  if  he  had  no  notice  of  the  actual  state 
of  the  title  and  claim  of  the  plaintiff,  having  sufficient  notice 
of  the  claim  and  controversy  to  be  put  upon  inquiry. 

8th.  That  although  the  plaintiff  may  never  have  been  able 
to  discharge  the  incumbrances  and  remunerate  the  defendant 
as  agreed,  equity  would  not  therefore  decree  that  his  rights 
were   extinguished,  though   it  might  on  this  ground  fore- 

32* 


378  LAW  OF  VENDORS  AND  PURCHASERS.     [CH.  XXII. 

close  his  rights  and  order  a  sale,  on  application  by  the  de- 
fendant.^ 

15.  A.,  having  an  equitable  interest  in  land,  of  which  he 
was  in  possession,  and  which  was  about  to  be  sold  at  a 
judicial  sale,  agreed  by  parol  with  B.,  that  he,  B.,  should 
purchase  it  for  the  benefit  of  A.'s  wife  and  children.  B. 
stated  the  agreement  to  several  persons,  and  his  statements 
were  calculated  to  stifle  competition  among  bidders,  and 
actually  did  prevent  one  person  from  attending  the  sale  and 
bidding.  B.  purchased  the  land  at  about  half  its  value,  and 
then  refused  to  comply  with  his  agreement.  Held,  that  B.'s 
conduct  was  fraudulent,  and  he  was  not  allowed  to  retain 
the  land.2  (a) 

16.  Upon  similar  principles  of  policy,  no  attorney  shall 
purchase  the  property  involved  in  a  litigation  of  which  he 
has  the  management.^  {b)  Thus  counsel  consulted  respecting 
a  title  cannot  buy  in  an  outstanding  adverse  claim,  and  set 
it  up  against  the  client.*  So  a  solicitor,  who  purchases  from 
his  client,  is  bound  to  prove  that  he  paid  that  price  for  the 
property  which,  in  the  exercise  of  his  professional  duty,  he 
would  have  advised  his  client  to  accept  from  a  third  person.^ 
So,  in  order  to  render  valid  such  purchase  by  a  solicitor  from 
his  client,  the  former  must  show  that  he  gave  his  client  all 
the  reasonable  advice  against  himself,  which  his  office  would 
have  required  against  a  third  person  ;  varying,  however,  ac- 

1  Jenkins  v.   Eldredge,  3   Story,   R.  *  Hackcnbury  v.  Carlisle,  5  W.  &  S. 

181.  348. 

'^  Kinard  v.  Hiers,  3  Rich.  Eq.  423.  .  ^  Champion  v.  Rigby,  1  Russ.  &  My. 

3  Hall  V.  Hallet,  1  Cox,  134.  539. 

(a)  It  is  deemed  unnecessary  to  cite  more  of  the  numerous  cases  to  be 
found  in  the  books,  which  establish,  recognize,  or  illustrate  the  general 
principle  stated  in  the  text,  that  a  trustee  cannot  purchase  the  trust  pi'op- 
erty.  Some  of  those  which  point  out  exceptions,  qualifications,  or  peculiar 
applications  of  the  rule,  will  be  briefly  referred  to  in  a  subsequent  part  of 
this  chapter. 

(h)  As  to  the  signification  of  the  terms  "  undue  influence,"  as  applied  to 
transactions  between  solicitor  and  client,  see  Casborne  v.  Barsham,  2  Beav. 
76. 


CH.    XXII.]  TRUST,   ETC.  379 

cording  to  the  subject  of  the  purchase,  .the  relative  situation 
of  the  parties,  and  the  equality  of  the  footing  upon  which 
they  stand  in  reference  to  the  subject.  But,  if  the  relation 
does  not  exist  in  hdc  re,  the  rule  with  regard  to  the  onus  of 
proof  may  no  longer  be  applicable.^ 

17.  An  attorney,  consulted  by  a  vendor  respecting  the 
sale,  himself  became  the  purchaser  at  auction.  Held,  a  bill 
brought  by  him  for  specific  performance  should  be  dismissed, 
with  costs.2  So  an  agreement  entered  into  between  an 
attorney  and  his  client,  for  the  purchase  by  the  attorney,  at 
an  under  price,  of  estates  to  which  the  client  had  a  gogd 
title,  but  of  which  he  was  not  in  possession,  was  set  aside 
for  fraud  and  maintenance.^ 

18.  Agi-eement  for  a  reversionary  lease,  obtained  by  an 
attorney  from  the  son  of  his  employer,  who  was  remainder- 
man in  a  settlement,  under  which  his  father,  who  had  granted 
the  existing  lease,  was  tenant  for  life.  Bill  for  specific  per- 
formance dismissed.  A.,  under  a  settlement  executed  in 
1716,  was  tenant  for  life,  with  power  to  lease  for  any  term 
not  exceeding  thirty-one  years,  remainder  to  his  first  and 
other  sons  successively  in  tail  male.  In  1745,  A.  granted  to 
B.,  who  was  then  acting  as  his  attorney,  a  lease  of  lands, 
comprising  two  hundred  acres  of  good  land,  Irish  plantation 
measure,  for  three  fives  or  thirty-one  years,  whichever  should 
last  the  longest.  C.  was  the  only  son  of  A.  In  1749,  C.j 
by  a  writing  indorsed  upon  that  part  of  the  lease  of  1745 
which  was  in  the  possession  of  B.,  in  consideration  of  X20, 
agreed  to  ratify  that  lease,  and,  on  the  expiration  of  the 
term,  to  grant  a  renewal  for  a  further  term  of  (blank)  lives. 
The  agreement  was  not  indorsed  on  the  counterpart  of  the 
lease,  and  was  not  registered  till  June,  1760.  In  May,  1760, 
A.  died,  leaving  C,  who  by  deed,  in  1760,  settled  the  lands 
in  trust  for  himself  for  fife  ;  remainder  to  his  two  daughters 
as  tenants  in  common.     The  respondent  became  entitled  to 

1  Edward  v.  Meyrick,  2  Hare,  60.  ^  Jones  v.  Thomas,  2  You.  &  Coll. 

2  Salmon  v.  Cutts,  5  Eng.  Law.  &    498. 
Eq.  93. 


t 

380  LAW   OF   VENDORS    AND    PURCnASERS.  [('II.   XXII. 

one;  nioieiy  of  the  lands,  as  the  only  son  of  ono  of  the 
daughters,  and,  at  a  sale  under  a  decree  in  chancery  in 
1814,  purchased  the  other  moiety.  At  the  time  of  sale,  it 
was  mentioned  that  the  lands  were  sold  subject  to  the  lease 
of  1745.  B.  died  in  1780,  leaving  D.,  who  was  the  last  sur- 
viving life  in  the  lease  of  1745,  and  held  the  lands  under  the 
lease  till  his  death,  which  took  place  in  1817.  The  appel- 
lants claimed  as  devisees  of  D.  In  1820  the  appellants  filed 
a  bill  in  chancery,  stating  the  facts  above  mentioned,  and 
praying  specific  performance  of  the  agreement  to  grant  a 
reaewal  of  the  lease.  Held,  they  were  not  entitled  to  such 
relief.' 

19.  On  a  contract  for  the  sale  of  part  of  an  estate,  the 
purchaser  requiring  a  line  for  the  purpose  of  removing  ad- 
mitted defects  in  the  title,  the  vendor  employed  an  attorney, 
who  was  his  relation,  and  had  been  professionally  employed 
by  him  on  previous  occasions,  to  levy  the  fine  and  complete 
the  contract.  The  attorney  advised  the  levying  of  a  fine  of 
the  whole  of  the  vendor's  estate,  without  telling  him  the 
effect  of  it ;  such  fine  was  accordingly  levied,  and  the  vendor 
died  without  declaring  its  uses,  and  without  republishing 
his  will,  previously  made,  by  which  he  had  devised  the 
whole  estate  to  his  wife,  who  survived  him.  After  the  ven- 
dor's death,  the  attorney  claimed  the  estate  as  his  heir  at 
law,  alleging  that  the  will  was  revoked  by  the  fine,  and 
brought  actions  of  ejectment  to  recover  possession  thereof. 
The  widow  filed  a  bill  in  chancery  for  relief,  and,  on  an 
issue  directed  by  that  Court,  a  jury  found  that  the  attorney 
fraudulently  concealed  what  effect  the  fine  would  have  upon 
a  devise.  The  Court  of  Chancery,  upon  that  verdict,  decreed 
the  attorney  to  be  a  trustee  for  the  devisee.  The  House  of 
Lords,  allirming  that  decree,  held,  further,  that  the  attorney's 
alleged  ignorance  of  the  effect  of  the  fine,  and  his  omission 
to  inquire  whether  the  conusor  his  client  had  made  such  a 


1  Bkikcney  v.  Bagott,  3  Bligh,  N.  S.  237.     See  Twistleton  v.  Griffith,  1  P. 
Wins.  310. 


en.  XXII.]  TRUST,   ETC.  381 

will,  constituted  such  professional  ignorance  and  neglect,  as 
would  make  him  in  a  Court  of  Equity,  independent  of  the 
ground  of  fraud,  a  trustee.^ 

20.  In  1824,  A.  was  appointed  the  solicitor  for  B.  and  also 
employed  as  an  agent,  for  the  purpose  of  repurchasing  or 
redeeming  certain  annuities,  which  had  been  gi'anted  by  B. 
In  1825,  A.,  at  his  own  suggestion,  was  appointed  the  irre- 
vocable land  agent  and  receiver  of  B.,  in  order  to  induce 
certain  of  the  annuitants  to  make  reductions  in  their  claims ; 
and  A.,  from  that  period  until  May,  1838,  furnished  various 
accounts,  as  such  agent  and  solicitor,  which  accounts  were, 
from  time  to  time,  settled  and  signed  as  between  the  parties. 
In  1830,  A.,  while  still  in  the  employment  of  B.,  took  an 
assignment  of  one  of  the  annuities  for  his  own  benefit,  hav- 
ing paid  a  less  sum  than  that  which  had  been  agreed  upon 
by  the  deed  for  its  repurchase.  In  1838,  A.  obtained  a  loan 
of  .£12,000  for  B.,  B.'s  son,  C,  joining  in  the  security.  This 
loan  w^as  made  at  five  and  a  half  per  cent,  per  annum,  and 
the  deed  contained  mutual  covenants,  binding  the  lender  on 
the  one  hand  not  to  call  in,  and  the  borrower  on  the  other 
not  to  pay  off,  the  loan  for  five  years.  In  1838,  and  contem- 
poraneously with  the  other  mortgage,  A.  obtained  a  mort- 
gage of  the  equity  of  redemption,  to  secure  £6,250  at  six 
per  cent,  per  annum.  This  deed  contained  no  clause  re- 
straining A.  from  calling  in  the  money.  It  also  appeared, 
that  a  portion  of  this  sum  was  intended  to  secure  untaxed 
costs  already  incurred,  as  well  as  costs  to  be  incurred.  In 
1839,  the  original  bill  in  these  causes  was  filed  by  A.,  pray- 
ing a  foreclosure  of  his  mortgage  of  1838,  and  for  liberty  to 
redeem  the  prior  mortgages.  In  1840,  B.  and  C.  filed  a 
cross  bill,  impeaching  the  mortgage  and  the  two  accounts, 
upon  foot  of  which  the  balance  for  which  it  was  given  was 
struck,  and  also  praying  to  be  declared  entitled  to  the  benefit 
of  the  purchase  made  by  A.  in  1830.  Held,  the  prior  mort- 
gagees declining  to  be  redeemed,  that  the  original  bill  should 

1  Bulkley  v.  Wilford,  2  Cla.  &  Fin.  102. 


382  LAW    OF   VENDORS   AND   PURCHASERS.  [ciI.  XXII. 

stajul  dismissed,  as  against  them,  with  costs,  and  that  the 
original  bill  would  also  have  Ixhmi  dismissed  as  against  B. 
and  C,  were  it  not  for  the  accounts  prayed  by  the  cross  bill. 
Held,  also,  that  A.  was  a  trustee  for  B.  for  the  repurchase  of 
the  annuities,  and  that  B.  was  entitled  to  the  benefit  of  such 
purchase.^ 

21.  The  general  rule  has  been  held  applicable  to  a  sale  on 
execution,  at  auction.  Thus  land  was  sold  on  execution, 
and  the  plaintiff  directed  his  attorney  to  bid  it  olT.  The 
attorney  admitted  he  had  done  so,  and  said  the  deed  would 
be  made  to  the  plaintiff,  and  that  he  had  made  a  temj)orary 
sale,  to  save  the  expense  of  advertising,  and  would  receipt 
the  execution  when  paid.  The  sale  was  made  on  a  stormy 
day,  and  only  the  officer  and  the  attorney  attended.  The 
attorney  purchased  the  land,  and  afterwards  conveyed  to 
one  having  notice  of  the  facts.  The  land  was  worth  $2,000j 
but  only  $80  due  on  the  execution.  Held,  the  judgment 
debtor  might  redeem,  on  payment  of  the  latter  sum  and 
interest,  the  amount  paid  by  the  attorney  or  second  pur- 
chaser to  discharge  incumbrances,  and  the  cost  of  improve- 
ments made  by  the  latter.^  So,  where  an  attorney  employed 
to  collect  or  foreclose  a  mortgage,  took  a  conveyance  to  him- 
self of  the  equity,  instead  of  foreclosing ;  held,  the  estate 
was  subject  to  the  trust  in  the  hands  of  his  heirs,  and  that 
they  were  bound  to  reconvey,  on  payment  of  the  sum  paid 
for  the  equity,  and  of  the  trustee's  claim  for  his  services, 
together  with  the  value  of  improvements  made  by  them- 
selves before  notice  of  the  trust.^  So,  beneficial  contracts 
and  conveyances,  obtained  by  an  attorney  from  his  client, 
during  their  relation  as  such,  and  connected  with  the  subject 
of  the  suit,  being  also  liable  to  the  charge  of  champerty ; 
were  decreed  to  stand  as  a  security  only  for  what  was  ac- 
tually due,  and  purchases  by  the  attorney  were  declared  a 
trust.     So  a  subsequent  deed,  not  a  separate,  independent, 

1  Lawless  v.  Mansfield,  1  Dm.  &  ^  Giddings  i'.  Enstman,  5  Paige,  561. 
War.  f>57.  See  Daviimey  v.  Morris,  8  Watts,  314. 

2  Howell  V.  Baker,  4  Johns.  Cli.  118. 


I 

CH.  XXII.]  TRUST,    ETC.  383 

voluntary  transaction,  but  under  the  same  pressure,  and 
called  for  under  the  covenant  for  further  assurance,  was  held 
no  confirmation.^ 

22.  It  is  held,  however,  that  an  attorney  may  contract 
with  his  client,  provided  no  advantage  be  taken  of  this  re- 
lation. If  he  be  employed  to  sell,  and  choose  to  deal  for 
the  estate,  he  must  withdraw  from  the  connection,  or  put 
himself  completely  at  arm's  length,  and  show,  if  the  contract 
be  questioned,  that  he  has  given  the  same  advice  for  the 
benefit  of  his  client,  as  he  would  have  done  if  the  sale  had 
been  to  a  third  party.  If  employed  as  a  general  land  agent, 
he  is  bound,  if  he  purchases  any  of  the  estates,  to  communi- 
cate to  his  principal  all  the  knowledge,  acquired  by  him  as 
agent,  of  the  real  value  of  the  estate.  But  mere  attorney- 
ship does  not  prevent  his  entering  into  a  valid  contract  with 
his  client.^  So,  after  a  delay  of  eighteen  years,  a  bill  filed 
by  a  client  against  his  solicitor,  to  avoid  a  purchase,  was 
dismissed.^ 

23.  Purchase  of  a  reversionary  interest  by  an  attorney 
from  his  client,  which  proved  in  the  event  advantageous,  but 
made  without  fraud  or  any  representation  ;  the  proposal 
coming  from  the  client,  no  confidence  being  reposed,  and 
both  being  ignorant  of  the  value.  The  bill  charges  fraud 
and  misrepresentation,  confidence,  and  knowledge  on  one 
side,  with  ignorance  on  the  other,  but  omits  the  only  incor- 
rect circumstance,  that  the  receipt  was  taken  as  for  money 
paid,  though  the  real  consideration  was  by  deduction  from 
a  bill  of  costs,  not  then  of  that  amount.  Bill  dismissed, 
without  costs.^ 

24.  The  same  principle  is  often  applied  to  purchases 
made  by  parties,  who  are  charged  with  trusts  in  relation  to 
the  estates  of  deceased  persons,  [a)     Thus,  a  purchase  by  the 

1  Gibson  v.  Jeyes,  6  Vcs.  266.         •  ^  Champion    v.   Rigby,    1    Russ.    & 

2  Cave  V.  Allen,  2  Dow.  289.     See     Myl.  5.39. 

Edward  v.  Meyrick,  2  Hare,  60,  *  Montesquieu y.  Sandys,  18  Ves.302. 

(a)  It  is  said,  tliat,  if  heirs  elect  to  set  aside  purchases  made  by  executors, 


I 

384  LAW   OF   VENDORS   AND   PUKCnASERS.  [CII.  XXII. 

general  agent  of  heirs,  of  the  land  of  their  ancestor,  from  the 
vendee  at  a  tax  sale,  instead  of  redeeming  the  land,  enures 
to  the  benefit  of  the  heirs.'  So,  where  executors,  having 
authority  to  sell,  sold  with  the  intent  of  repurchasing  ;  held, 
the  sale  was  voidable.^  So,  in  case  of  a  devise  of  land 
mortgaged,  with  a  direction  to  the  executors  to  redeem ; 
though  having  assets,  they  took  an  assignment  of  the  mort- 
gage. Held,  they  took  in  trust  for  the  devisee.*'^  So,  where 
an  administi-ator  purchases  land,  sold  upon  a  judgment  in 
favor  of  his  intestate  ;  he  takes  it  in  trust.*  So,  if  an  ex- 
ecutor purchase  the  land  of  his  testator  at  sheriff's  sale, 
recede  from  his  purchase,  and  the  land  be  resold  ;  he  is 
chargeable  for  the  highest  price.^  So,  where  an  executor 
purchases  land,  and  takes  a  conveyance  to  the  estate,  this  is 
prima  facie  a  declaration  of  trust,  and  the  land  will  be  sub- 
ject to  division  among  the  heirs.^  So  a  purchase  by  an 
executor,  at  an  Orphan's  Court  sale  for  payment  of  debts,  is 
voidable  by  the  devisee  or  heir,  even  though  the  devisee  did 
not  interfere  in  procuring  such  order,  but  the  petition  was 
presented,  the  bond  given,  and  the  sale  made,  by  another 
executor.'^     So,  where  one  of  two  executors,  empowered  to 

1  Myers,  2  Barr,  463.  Darcus   v.    Crump,    6   B.    Mon.   363  ; 

2  Den  V.  M'Kiiight,  6  Halst.  385.  Painter  v.  Henderson,  7  Barr,  48. 
^  Jenison  v.  Hapgood,  7  Pick.  1.  &  Guier  v.  Kelly,  2  Bin.  294. 

*  Fellows  V.  Fellows,  4  Cow.  682.    Sec        ^  Garrett  v.  Garrett,  1  Strobh.  Eq.  96. 

■^  Beeson  y.  Beeson,  9  BaiT,  279. 


administrators  or  guardians,  at  their  own  sale,  they  must  go  into  a  Court  of 
Equity.     Worthy  v.  Johnson,  8  Geo.  236. 

The  general  principle  is  applied  to  other  transactions  of  similar  effect,  as 
•well  as  direct  purchases.  Thus  an  action  was  brought  against  A.,  an  ad- 
ministrator, for  his  own  benefit,  but  in  the  name  of  B.  A.  suffered  a  judg- 
ment to  be  rendered  against  him,  and,  in  the  levy  of  the  execution  upon 
the  intestate's  estate,  acted  both  as  defendant  and  agent  of  B.  Held,  the 
proceedings  were  collusive  and  illegal,  aod  the  levy  void  against  a  subse- 
quent execution  in  favor  of  C.     Goddard  v.  Divoll,  1  Met.  413. 

Upon  the  same  ground,  one  to  whom  a  legacy  is  given,  coupled  with  a 
trust,  is  chargeable  with  the  latter,  and  cannot  legally  deal  with  the  cestui 
que  trust.    McCants  v.  Bee,  1  McC.  Cha.  383. 


en.  XXII.]  TRUST,   ETC.  385 

sell  real  estate,  sells  to  the  other,  who  has  resigned  his  trust, 
he  being  an  heir  and  devisee,  and  trustee  for  others,  the 
former  cannot  maintain  a  bill  in  equity  for  specific  perform- 
ance of  such  contract.^  It  is  said,^  "  We  cannot  sustain 
upon  principles  of  sound  policy  contracts  of  a  character  like 
the  present.  For  although  we  have  no  reason  to  doubt  that 
this  individual  transaction  is  fair  in  its  motives,  and  bene- 
ficial perhaps  to  the  other  children  of  the  testator ;  still  to 
affirm  it  would  sanction  the  principle,  that  an  executor  may 
bargain  with  his  coexecutor  for  the  estate  of  the  testator  or 
a  part  of  it,  and  then,  by  the  resignation  of  him  who  is  to 
have  the  estate,  a  conveyance  can  be  made  to  him  by  the 
other ;  and  this,  where,  as  a  trustee,  he  is  still  in  privity 
with  the  estate.  And  though  conveyances  to  trustees  may 
be  examined  in  a  Court  of  Equity,  and  set  aside,  as  it  re- 
gards heirs  or  cestuis  que  trust,  still  the  conveyance  would  be 
voidable  only  in  the  first  instance,  and  a  title  might  perhaps 
be  passed  to  strangers  purchasing  without  notice."  But  it 
has  been  held,  that,  where  land  is  sold  under  a  testamentary 
power  by  trustees,  an  executor,  not  one  of  the  trustees,  may 
purchase.^ 

25.  The  same  principle  has  been  applied  to  guardians. 
Thus  a  guardian  sold  his  ward's  land  by  auction,  himself 
being  the  auctioneer,  and  employing  an  agent  to  bid  on  his 
account.  A  question  arising,  whether  the  bid  of  the  agent 
or  a  higher  one  by  another  person  was  the  last  before  the 
hammer  was  down ;  the  guardian  decided  in  favor  of  the 
former.  The  conditions  provided  that  the  buyer  should  take 
the  land  at  an  estimated  quantity,  unless  he  elected  at  the 
sale  to  have  it  measured.  The  agent  did  not  so  elect,  but 
the  guardian  had  the  land  measured,  and  it  fell  below  the 
estimate.  The  guardian  afterwards  sold  the  land  at  an 
advance,  but  in  his  account  charged  himself  only  with  the 
price  determined  by  the  measurement.     Held,  he  was  bound 

'  Shelton  v.  Homer,  5  Met.  462.  ^  Cudburry  u.  Duval,  10  Barr.  26.5. 

2  Ibid.  458,  per  Hubbard,  J. 

33 


386         LAW  OF  VENDORS  AND  PURCHASERS.     [CH.  XXII. 

to  account  for  the  sum  for  which  he  resold  ;  and,  although 
there  was  evidence  tending  to  show  a  rescinding  of  the 
second  sale,  the  deed  not  being  on  record,  but  within  the 
power  of  the  guardian,  but  the  grantee  still  remaining  in 
possession  ;  still  the  guardian  could  not  claim  another  sale, 
to  determine  the  amount  which  he  should  account  for.'  But 
he  was  allowed  the  sum  paid  to  his  agent  for  his  services  in 
purchasing  the  land.^ 

26.  Upon  the  general  grounds,  relating  to  agency  and  trust, 
which  have  been  considered  in  this  chapter,  it  may  be  added, 
by  way  of  miscellaneous  examples,  that,  if  the  property  pur- 
chased by  a  trustee  is  a  lease,  and  he  renews  it  in  his  own 
name,  the  renewal  is  for  the  cestuVs  benefit.  So,  if  a  trustee 
buys  in  an  incumbrance  upon  the  estate,  he  can  hold  it  only  as 
security  for  the  sum  paid  by  him,  with  interest.^  So  where 
one  of  several  remainder-men  purchased  the  particular  estate 
avowedly  for  aU  ;  held,  a  trust  for  the  others.^  So  the  rule 
applies  to  public  trusts ;  as  where  a  member  of  the  legisla- 
ture sought  to  obtain  a  title  from  the  land-office,  after  the 
claimant  had  petitioned  for  confirmation  of  his  right.^  And 
it  has  been  adopted  in  church  as  well  as  state.  Thus,  where 
a  rector  was  authorized,  with  consent  of  the  bishop,  to  raise 
money  by  an  annuity  for  the  rectory  house  ;  and  the  bishop 
advanced  the  money,  and  obtained  a  grant  of  the  annuity 
charged  on  the  living  ;  held,  the  proceeding  was  wholly 
void.^  {a) 

1  Hayward  v.  Ellis,  13  Pick.  272.  Tanner    v,   Elworthy,    4    Beav.   487  ; 

2  Ibid.  Webb  v.  Sugar,  2  Y.  &  Coll.  247. 
8  Killick   V.   Flexney,   4    Bro.   161  ;        *  Anderson  ?;.  Bacon,  1  Mar.  51. 

Quackenbush  v.  Leonard,  9  Paige,  3-34  ;        ^  O'Neill,  2  Bland.  1.51. 
Waters  v.  Bailey,  2  Y.  &  Coll.  Ch.  219  ;         ^  Qreenlow  v.  King,  3  Beav.  49.    See 

Fuller  V.  Dame,  18  Pick.  472. 

(a)  In  Arnold  v.  Brown,  24  Pick.  89,  it  was  attempted  to  avoid  a  sale  of 
personal  property,  on  the  ground  that  it  was  purchased  by  an  attaching 
officer,  subject  to  the  lien  of  the  attachment ;  and  that  he  stood  in  such  a 
fiduciary  relation  to  the  debtor  and  the  attaching  and  other  creditors,  as  to 
brnig  the  case  within  the  principle  of  a  sale  of  trust  property.  But  this 
principle  was  held  inapplicable  to  such  a  case.    Morton,  J.,  says,  (p.  97,) 


CH.  XXII.]  TRUST,   ETC.  387 

27.  Upon  similar  grounds,  where  an  administrator,  who 
was  prosecuting  a  suit  in  the  name  of  an  intestate,  prevailed 
on  one  of  the  next  of  kin,  an  aged  lady  living  in  his  own 
family,  under  the  pretence  that  she  was  running  great  risk 
by  the  suit,  to  release  to  him  all  her  right  in  the  estate ;  held, 
he  could  not  be  permitted  to  avail  himself  of  it.' 

28.  The  general  rule,  which  has  been  considered  in  this 
chapter,  being  established  for  the  protection  of  parties  who 
have  entered  into  a  confidential  relation  with  others,  (a)  it 
follows,  as  a  necessary  inference,  that  a  purchase  made  by  a 
trustee  (and  the  same  is  true  of  agents  and  all  other  parties 
confidentially  employed)  is  not  absolutely  void,  but  voidable 

i  Baxter  v.  Costin,  1  Busb.  Eq.  262, 


"  The  property  attaclied  bears  very  little  resemblance  to  a  trust  fund,  and 
the  sheriff  cannot  be  considered  as  sustaining  the  relation  of  agent  or  trustee 
in  any  sense,  to  the  defendant  in  the  attachment.  He  is  the  officer  of  the 
law,  and  as  such  holds  the  property  attached.  It  may  be  considered  in  the 
custody  of  the  law.  The  debtor  is  not  considered  to  be  under  the  control 
or  influence  of  the  officer,  nor  in  any  degree  incapacitated  from  acting  for 
himself,  and  assisting  and  (in)  maintaining  his  own  rights.  There  is  no  such 
fiduciary  relation  between  them  as  to  form  any  obstacle  to  their  contracting 
with  each  other.  Their  interest  is  adverse,  and  there  exist  the  ordinary 
securities  for  fair  dealing  and  equal  terms  in  their  negotiations."  He  pro- 
ceeds to  remark,  however,  that  the  relation  of  these  parties  is  such  as  to 
induce  close  scrutiny  for  the  purpose  of  preventing  any  fraud  or  oppression. 
(a)  Upon  this  ground  it  has  been  held,  that  though,  in  general,  a  person 
who  undertakes  to  act  for  another  cannot,  in  the  same  matter,  act  for  him- 
self, it  is  not  universally  true  that  a  trustee  cannot  purchase  the  trust  estate ; 
but  circumstances  may  render  it  necessary,  in  order  to  protect  the  interests 
of  the  cestui  que  trust.  Spindler  v.  Atkinson,  3  Md.  409.  So  a  trustee 
may  purchase  the  trust  property  from  his  cestui  que  trust,  who  is  sui  juris,  if 
there  is  a  distinct  bond  fide  contract,  ascertaiued  to  be  such,  after  a  jealous 
and  scrupulous  examination  of  all  the  circumstances,  on  the  part  of  the 
cestui,  that  the  trustee  sliould  purchase ;  and  if  there  is  no  fraud  or  con- 
cealment, and  no  advantage  taken  by  the  ti-ustee  of  information  acquired 
by  him  in  that  character.  Bryan  v.  Duncan,  11  Geo.  67.  A  trustee  may* 
discharge  a  prior  incumbrance  for  the  benefit  of  the  estate,  and  reimburse 
himself  out  of  the  trust  property.     Crutchfield  v.  Haynes,  14  Ala.  49. 


388  LAW   OF    VENDORS   AND    PURCHASERS.  [CH.  XXII. 

at  the  election  of  the  cestui,  within  a  reasonable  time.  But 
if,  after  notice  of  the  transaction,  the  latter  confirms,  or  un- 
equivocally acquiesces  in  the  sale ;  this  will  be  a  ratification 
both  in  law  and  equity.'  (a)  Thus  a  cestui  knowing  of  a 
purchase  of  the  trustee,  and  of  his  right  to  avoid  it,  may 
ratify  it,  by  assenting  to  the  application  of  the  purchase- 
money  to  his  use.2 

29.  By  virtue  of  the  same  qualification  of  the  general 
rule  upon  this  subject,  if  a  trustee,  who  himself  purchases, 
make  improvements,  he  will  be  allowed  therefor  upon  a 
resale  ordered  by  the  Court.  In  some  cases,  the  property 
will  be  put  up  at  the  original  price,  in  addition  to  the  cost 
of  the  improvements,  and,  if  it  will  not  bring  more  on  the 
sale,  the  original  purchase  will  be  allowed  to  stand.*^  So  it 
has  been  held,  that  a  bill  filed  by  a  cestui  que  trust,  to  set 
aside  a  sale  at  which  the  trustee  became  the  purchaser,  is 
demurrable,  if  it  does  not  contain  an  offer,  or  what  is  equiv- 
alent to  such  offer,  to  do  what  is  equitable,  by  the  repay- 
ment or  allowance  to  the  trustee  of  the  amount  actually 
paid  by  him.* 

30.  Upon  the  filing  of  a  bill  in  equity  to  obtain  a  resale, 
it  wUl  be  referred  to  a  master  to  settle,  whether  such  resale 
would  be  beneficial  to  the  plaintiff;  and,  if  made,  and  not 
for  an  increased  price,  the  trustee  will  be  required  to  com- 
plete the  purchase.^ 

31.  A  trustee  for  payment  of  debts  purchased  the  estate 

'  Prevostu.  Gratz,  1  Pet.  C.  C.  368;         ^  Mason  v.  Martin,  4  Md.  124. 
Mason  v.  Martin,  4  Md.  124.  *  Gunn  v.  Brantley,  21  Ala.  633. 

2  Beeson  v.  Beeson,  9  Barr,  279.  ^  Campbell  v.  Walker,  5  Ves.  678.     ♦ 


(a)  It  is  said,  upon  the  same  principle,  "  Strangers  to  the  property  can- 
not call  the  sale  in  question.  It  is  an  abuse  of  authority,  which  may  be 
taken  advantage  of  by  any  one  whose  interest  is  affected.  Hence  cestui  que 
.  -usts  and  all  for  whom  the  trustee  or  agent  acted,  have  an  option  to  avoid 
the  sale  and  retain  the  property  sold,  or  to  confirm  the  sale  and  receive  the 
consideration,  as  may  be  for  their  interest,"  Per  Morton,  J.,  Litchfield  v. 
Cudworth,  15  Pick.  31. 


CH.  XXII.]  TRUST,   ETC.  389 

as  agent  for  his  father,  both  being  creditors  and  partners ; 
but  the  cestui  had  full  knowledge  and  took  the  sole  manage- 
ment of  the  sale,  making  surveys,  settling  the  particulars, 
prices,  &c.     Held,  the  purchase  was  good.' 

32.  Upon  the  same  general  principle,  it  is  held  that  neither 
remainder-men,  strangers,  nor  parties  to  the  deed,  nor  those 
claiming  under  them,  nor  the  trustee  himself,  can  avail 
themselves  of  the  objection.  But  the  representatives  of  the 
party  beneficially  interested  may  avoid  such  sale.^  (a) 

33.  Whether  a  sale  at  auction  falls  within  the  general 
prohibition  upon  this  subject,  is  a  point  not  fully  settled. 
The  weight  of  authority  is  that  it  does.^     Thus  it  is  held, 

1  Coles  V.  Trecothick,  9  Vcs.  234.  Sandf.  Cha.  592;  Pitt  v.  Petway,  12 
See  Mm-dock,  2  Bland,  467 ;  Allen  v.     Ired.  69. 

Bryant,  7  Ired.  Eq.   276;  Kennedy  v.  ^  See  Rogers  t>.  Rogers,  1  Hopk.  527  ; 

Kennedy,  2  Ala.  N.  S.  572.  Eichelberger  v.   Barnitz,    1   Yea.  .312; 

2  Thorp  V.  M'CuUum,  1  Gilm.  614  ;  Drayton  v.  Drayton,  1  Des.  567  ;  Hud- 
Painter  u.  Henderson,  7  Barr,  48;  Weel-  son  v.  Hudson,  5  Munf.  180. 

hers,   &c.   2,   71  ;   Ward  v.   Smith,   3 


(a)  The  mortgagee  or  creditor  in  a  trust  deed  may  purchase  at  the  sale 
provided  for  by  the  deed.  But  in  ease  of  any  want  of  fairness  and  good 
faith,  or  abuse  of  his  power,  he  will  be  regarded  as  holding  the  property 
only  as  security  for  his  debt.     Lyon  v.  Jones,  6  Humph.  533. 

So  a  plaintiff,  creditor,  or  mortgagee,  may  purchase  at  a  sale  made  by  a 
trustee,  and  the  purchase-money,  after  deducting  all  commissions,  expenses, 
and  costs,  may  be  discounted  from,  or  applied  to,  the  debt  due  such  pur- 
chaser.    Murdock's  case,  2  Bland,  461,  468. 

A  cestui  que  trust  may  purchase  at  a  sale  of  the  trust  estate  ;  and  does 
not  become  a  trustee  for  other  parties,  without  repayment  to  him  of  the 
purchase-money.     Walker  v.  Brungard,  13  S.  &  M.  723. 

But  one  trustee  cannot  purchase  from  another.  Case  v.  Abeel,  1  Paige, 
393  ;  Ringgold  v.  Ringgold,  1  Har.  &  G.  11.  See  Giddings  v.  Eastman,  5 
Paige,  561. 

But,  where  one  trustee  purchases  at  the  sale  of  another,  such  sale  will 
not  be  wholly  void  for  fraudulent  acts  of  the  seller,  unless  the  purchaser  is 
shown  to  be  connected  with  them.     Beeson  v.  Beeson,  9  Barr,  279. 

Although  a  trustee  cannot  become  a  purchaser  of  the  trust  estate,  there 
is  no  reason  why  he  should  not  occupy  it,  if  he  accounts  for  the  rents,  and  to 
the  amount  the  Court  may  consider  reasonable.  Root  v.  Yeomans,  1 5  Pick. 
495. 

33* 


390  LAW   OF   VENDORS  AND   PURCHASERS.  [CH.  XXH. 

that,  though  a  trustee  may  purchase  the  property  levied  on 
and  sold  at  a  sherifl's  sale,  at  the  instance  of  others,  and 
will  be  entitled  to  reimbursement  for  his  expenditures  in  the 
purchase  ;  he  cannot  deprive  the  cestui  of  any  benefit  arising 
from  such  purchase.^  It  has  been  doubted  whether  the  gen- 
eral rule  applies,  where,  in  case  of  a  trust  for  creditors,  a 
majority  of  them  assent,  or  where  the  estate  is  sold  under 
a  decree  in  chancery,  by  an  open  bidding  before  the  master. 
But  a  sale  is  not  valid  merely  because  it  is  judicial ;  more 
especially  when  made  at  the  instance  of  the  trustee  himself. 
Nor  because  it  is  a  public  sale.  So  where,  in  a  sale  made 
by  executors,  one  of  them  became  a  joint  purchaser  and 
afterwards  sole  owner ;  held,  the  land  was  still  liable  to  be 
taken  by  creditors,  though  ratified  by  the  heirs  and  de- 
visees.2 

34.  As  to  the  time  at  which  a  purchase  made  by  the 
trustee  must  be  disaffirmed ;  it  is  said,  the  cestui  que  trust 
"must  not  lie  by  to  speculate  upon  events;"^  but  disaffirm 
the  sale  in  reasonable  time,  according  to  the  circumstances 
of  the  case.* 

35.  The  sale  was  made  under  a  deed  of  trust  in  March, 
1847,  and  the  trustee,  by  his  agent,  became  purchaser  of  the 
land  for  his  own  use.  The  cestui  que  trust  had  no  notice  of 
the  sale,  and  it  did  not  appear  when  she  first  discovered  that 
the  agent  purchased  the  land  for  the  trustee.  In  Septem- 
ber, 1848,  the  agent  sold  and  conveyed  the  land  to  A.,  and 
in  September,  1850,  the  cestui  que  trust  filed  her  bill  to  set 
aside  the  first  sale.  Held,  that  this  was  not  an  unreasonable 
delay ;  and,  though  she  might  have  been  present  at  the  last 
sale,  and  made  an  offer  for  the  land,  she  would  not  be  con- 
sidered as  having  acquiesced  in  this  sale,  unless  she  was 
aware  that  the  trustee  had  violated  his  duty  in  making  the 
first  sale.^     But  when  a  trustee,  with  the  knowledge  of  his 

1  Spindler  v.  Atkinson,  3  Md.  409.  3  gall  v.  Carew,  13  Pick.  31. 

2  Wig-rins,  1  Hill's  Cha.354  ;  Whelp-        *  Andrews  v.  Hobson,  23  Ala.  219. 
dale  V.  Cookson,  1   Ves.  9;   Bmch  v.        ^  Mason  u.  Martin,  4  Md.  124. 
Lantz,  2  Rawle,  392  ;  Campbell  V.Penn- 
sylvania, &c.  2  Whart.  53. 


CH.  xxil]  trust,  etc.  391 

cestui  que  trust,  makes  a  conveyance  apparently  in  deroga- 
tion of  the  trust,  and  undisturbed  possession  is  held,  and 
improvements  made,  for  fifty  years,  by  the  grantee  and  those 
claiming  under  him,  no  claim  being  asserted  by  the  cestui 
que  trust ;  it  may  be  presumed  that  he,  for  a  sufficient  con- 
sideration, directed,  or  acquiesced  in,  the  conveyance.^  {a) 

36.  The  sale  of  trust  property  to  the  trustee  cannot  be 
avoided  against  a  bond  fide  purchaser  or  mortgagee.^  Thus 
a  debtor,  being  in  failing  circumstances,  and  owing  to  five  of 
his  creditors,  severally,  $7,540,  gave  them  therefor  a  judgment 
bond;  and  A.,  as  their  attorney,  entered  up  the  judgment, 
and  issued  an  execution,  upon  which  the  real  property  of 
the  debtor  was  advertised  for  sale.  Three  of  the  creditors 
attended  the  sale,  in  the  absence  of  the  other  two,  and 
agreed  not  to  bid  against  each  other,  but  to  employ  an  agent 
to  bid  in  the  property,  and  to  divide  the  profits  of  the  pur- 
chase between  them  in  proportion  to  their  respective  debts  ; 
and  for  this  purpose  they  employed  A.,  who  bid  in  the  prop- 
erty for  $625,  which  was  less  than  one  fifth  of  its  cash 
value ;  and  a  few  days  thereafter  he  sold  the  premises  for 
$3,600,  and  divided  the  profits  among  the  three  creditors. 
Held,  the  purchase  was  fraudulent,  as  against  the  other 
two ;  but,  being  made  to  a  bond  fide  purchaser,  without 
notice,  that  both  sales  must  stand ;  and  the  three  creditors 
must  account  to  the  other  two  for  their  shares  of  the  pro- 
ceeds, in  proportion  to  their  several  interests  in  the  judg- 
ment.^ 

37.  With  regard  to  the  remedy  of  the  cestui  que  trust,  in 
case  of  a  purchase  by  the  trustee,  it  has  been  held,  that  it 

1  Williams  v.  First  Presbyterian,  &c.         '^  Robbins  v.  Bates,  4  Cusli.  104. 
1  Ohio,  478.  ^  Hawley  v.  Cramer,  4  Cow.  718. 

(a)  In  Pennsylvania,  a  purchase  of  land  by  an  administrator,  at  a  sale  of 
the  estate  of  bis  intestate,  if  not  actually  fraudulent,  cannot  be  avoided  by 
the  heirs,  unless  suit  be  brought  -within  twenty-one  years  after  the  sale,  or 
within  ten  years  after  they  come  of  age,  if  they  were  then  minors.  Mussel- 
man  V.  Eshleman,  10  Barr,  394. 


392  LAW   OF   VENDORS   AND   PURCnASERS.  [CH.  XXII. 

must  be  more  particularly  directed  to  the  property  itself  than 
to  the  party  who  has  committed  the  wrong ;  it  is  rather  in 
rem  than  in  personam.  Tims  an  agent,  appointed  to  sell  a 
mortgage,  represented  to  his  principal  that  he  could  get  no 
more  than  a  certain  price  for  it,  which  was  less  than  its  real 
value,  and  bought  it  for  that  price.  Held,  the  remedy  of  the 
principal  was  not  an  action  for  fraud,  but  a  claim  to  annul 
the  sale,  or  foK  an  account  for  the  true  value.^ 

38.  On  a  bill  to  set  aside  the  sale  of  an  estate,  on  the 
ground  of  fraud,  the  plaintiff  cannot  give  evidence  of  the 
relation  of  attorney  and  client  at  the  time  of  the  sale,  with 
a  view  of  raising  an  inference  of  fraud ;  the  fact  not  being 
stated  or  put  in  issue  by  the  bill.^ 

39.  A.'s  interest  in  leasehold  lands  having  been  set  up  for 
sale  on  execution,  C,  his  attorney,  the  real  plaintiff  in  one 
of  the  writs,  but  not  pressing  the  sale,  attended ;  and,  having 
made  the  largest  bid,  he  was  declared  the  purchaser.  He 
paid  the  purchase-money,  which  was  not  more  than  sufficient 
to  satisfy  the  writs  prior  to  his  own,  and  the  expenses.  A. 
claimed  the  benefit  of  the  purchase,  alleging  that  C.  bid  as 
his  agent,  and  purchased  in  trust  for  him,  which  C  denied, 
but  offered  to  give  up  the  purchase  if  A.  would  pay  him  the 
purchase-money  and  other  demands  he  had  on  him.  A.  was 
not  then  able  to  raise  the  money,  but  after  ten  years, — during 
which  C.  dealt  with  the  lands  as  his  own, — he  filed  his  bill, 
charging  that  C.  bid  for  and  purchased  tTie  land  as  his  agent, 
in  trust  for  him ;  that  C.  said  so  at  and  after  the  sale  in 
conversation  with  friends  of  A.,  and  they,  on  that  under- 
standing, did  not  bid ;  all  of  which  C.  positively  denied  in 
his  answer.  S.,  a  witness  for  A.,  proved  conversations  be- 
tween hitnself  and  C,  as  charged  in  the  bill.  Held,  1.  That 
a  decree,  by  which  the  bill  was  dismissed  upon  C.'s  under- 
taking to  release  A.  from  all  demands ;  and  a  second  decree 
by  which  the  former  was  varied,  and  an  issue  directed  to 

1  Thompson  v.  Hallet,  26  Maine,  141.  ^  Williams  v.  Llewellyn,  2  You.  & 

Jer.  68. 


CH.*XXII.]  TRUST,   ETC.  *  393 

ascertain  the  value  of  A.'s  interest  in  the  lands  at  the  time 
of  the  sale  ;  were  both  erroneous.  , 

2.  That  an  inquiry  as  to  such  value  was  immaterial.  The 
material  question  being,  whether  C.  was  acting  on  behalf  of 
A.  in  bidding  and  purchasing,  C.  might  take  an  issue  to  try 
that  question  ;  but,  if  he  declined,  he  should  be  declared  a 
trustee  for  A. 

3.  That  A.'s  equity  was  not  affected  by  the  lapse  of  ten 
years,  there  being  no  acquiescence  by  A.,  and  C.  being  aware 
of  his  rights. 

4.  That,  if  an  attorney  is  not  acting  as  attoriiey  for  his 
client  on  a  particular  occasion,  he  may  throw  off  that  cha- 
racter, and  exercise  his  independent  rights.^  (a) 

1  Austin  V.  Chambers,  6  CI.  &-rin.  1. 

(a)  In  illustration  of  the  general  principle  stated  in  the  text,  we  may 
refer  to  a  few  miscellaneous  cases,  some  of  which  are  not,  strictly  speaking, 
purchases  of  real  property.  In  proof  of  the  universality  of  the  rule,  it  is 
said,  equity  will  never  permit  a  trustee  to  secure  his  own  debt,  not  secured 
by  the  trust,  by  a  combination  with  one  claiming  adversely  to  the  cestuis. 
Irwin  V.  Harris,  6  Ired.  Eq.  215. 

So  the  reason  of  the  rule  is  said  to  be,  not  that  there  is,  but  there  may  be 
fraud.     Brothers  v.  Brothers,  7  Ired.  Eq.  150. 

The  principle  is  often  applied  in  connection  with  mortgages  purchased  or 
held  by  the  trustee.  Thus  a  trustee  agreed  to  purchase  a  farm  for  the  cestui 
from  the  proceeds  of  trust  property.  He  bought  the  farm,  giving  a  bond 
and  mortgage  for  the  price,  but  refused  to  pay  them,  and  procured  a  fore- 
closure and  sale  by  the  mortgagee  at  a  heavy  loss.  Held,  he  was  liable  for 
such  loss.     Green  v.  Winter,  1  John.  Cha.  27. 

Where  a  bank  was  bound  to  pay  off  and  discharge  a  mortgage,  so  as  to 
relieve  the  property  of  a  third  person  from  sale  under  a  decree  of  fore- 
closure, and  the  cashier  attended  the  sale  as  agent  for  the  bank,  and  bid  off 
the  property  on  his  own  account ;  held,  equity  would  regard  him  as  pur- 
chasing for  the  benefit  of  the  bank,  and  that  the  purchase  was  improper, 
and  should  be  set  aside.     Bank,  &c.  v.  Torrey,  7  Hill,  260. 

A  trustee  sold  the  property  on  credit,  taking  a  bond  and  mortgage  back, 
and  afterwards  repurchased  part  of  the  property,  and  gave  credit  for  the 
amount  on  the  bond.  The  sale  being  rescinded,  ]jeld,  the  cestui  que  trust 
might  elect  to  claim  the  property  or  the  money.  Sollee  v.  Croft,  7  Rich. 
Eq.  34. 


394  LAW   OF   VENDORS   AND   PURCHASERS.  [CH.  Xtll. 

So,  where  a  trustee  became  the  owner  of  land,  on  which  was  a  mortgage 
belonging  to  the  trust  estate,  canrellcd  the  mortgage  on  the  record,  sold  one 
third  of  the  land,  taking  back  a  mortgage  for  the  same  amount  as  the  former 
one,  and  executed  a  declaration  of  trust,  acknowledging  that  he  held  it  in 
trust  in  lieu  of  the  former  one  ;  but  the  land  included  in  the  latter  mortgage 
was  greatly  inadec^uate  security ;  on  a  bill  by  the  cestui,  setting  forth  that 
these  acts  were  done  without  his  knowledge  or  consent,  and  that  the  original 
bond  and  mortgage  had  never  boon  paid,  a  decree  was  made,  establishing 
these  securities  as  still  valid,  securing  the  rights  of  subsequent  bond  Jide 
mortgagees,  and  directing  a  sale  of  the  property,  and  payment  by  the 
trustee  of  any  deficiency.  So,  where  the  holder  of  a  mortgage  assigned  it 
in  trust,  for  the  benefit  of  children,  and  afterwards  accepted  a  reassignment 
of  it  from  the  assignee  in  trust ;  held,  he  was  accountable  as  trustee  to  the 
cestuis.  So,  where  a  trustee  has  borrowed  money,  and  with  it  purchased 
other  property,  and  added  it  to  the  trust,  and  repaid  the  borrowed  money 
from  the  proceeds  and  profits  of  the  trust  property,  the  property  thus  pur- 
chased belongs  to  the  beneficiary.  Wasson  v.  English,  13  Mis.  176;  Butler 
V.  Hicks,  11  Sm.  &  M.  78;  Gilchrist  v.  Stevenson,  9  Barb.  9;  Stuart  v. 
Kissam,  2,  498  ;  Whichcote  v.  Lawrence,  3  Ves.  740. 

A  testator  died  insolvent,  in  1828,  leaving  a  farm  and  house,  and  the 
plaintiff,  his  widow,  as  his  executrix.  She  arranged  with  A.,  a  relative,  to 
buy  in  the  farm  when  sold,  and  hold  it,  to  be  conveyed  to  her  on  payment 
of  the  purchase-money,  on  which  she  was  to  pay  interest  quarterly.  In 
1834,  A.  conveyed  to  one  of  the  defendants,  her  step-son,  who  assented  to 
the  above  arrangement.  The  plaintiff  remained  in  possession  till  1842,  the 
property  having  greatly  increased  in  value,  when  the  step-son  refused  to 
convey,  and  conveyed  a  part  to  the  other  defendant.  The  agreement  to 
convey  was  made  at  or  before  the  sale,  and,  in  consequence  of  it,  the  estate 
brought  Si, 000  less  than  A.  paid.  The  plaintiff  had  for  some  years  neglected 
to  pay  the  interest  and  paid  none  of  the  principal.  The  plaintiff  files  a  bill 
in  equity  to  compel  specific  performance  of  the  agreement  to  convey  to  her, 
and  set  aside  the  conveyance  from  the  step-son.  Held,  the  agreement  was 
not  a  mortgage,  and  did  not  create  a  constructive  or  resulting  trust,  but  was 
merely  executory ;  that,  being  made  by  an  executrix  with  her  relative,  it 
was  a  fraud  on  heirs  and  creditors,  a  breach  of  trust,  and  against  public 
policy,  and  therefore  void  against  both  defendants,  the  purchaser  from  the 
step-son  being  a  purchaser  with  notice.     Tufts  v.  Tufts,  3  W.  &  M.  456. 

The  general  rule  stated  in  the  text  is  held  to  be  applicable  only  to  ^.n 
actually  existing,  not  to  a  past  trust,  or  one  with  which  the  purchaser  is  not 
himself  connected.  It  is  said,  "  It  would  seem  to  impose  an  unnecessary 
hardship  and  disability  upon  him  who  had  been  a  cestui  que  trust,  to  deprive 
him  of  the  power  of  de5,ling  with  him  who  had  been  the  trustee,  but  who 
had  discharged  himself  or  been  released  from  his  duty  as  trustee.     Such 


CH.  XXII.]  TRUST,   ETC.  395 

dealinfT  would  be  good,  if  fair  and  honest."  Per  Putnam,  J.,  Ball  v.  Carew, 
13  Pick.  31-2. 

One  of  two  partners,  in  his  own  name  and  with  his  own  funds,  purchased 
in  fee  the  p|Maises  on  which  the  firm,  under  a  lease,  was  carrying  on  busi- 
ness (after  VI  term  limited  for  the  partnership  had  expired,  but  before 
actual  dissolution.)  The  purchase  was  not  fraudulent,  but  made  without  the 
knowledge  or  consent  of  the  copartner,  and  with  notice  that  he  was  treating 
for  a  purchase  for  partnership  use,  and  was  not  any  part  of  the  firm's 
ordinary  business.  Held,  the  copartner  could  not  claim  the  premises  as 
partnership  property.     Anderson  v.  Lemon,  4  Sandf.  552. 

A.  mortgages  land  for  security  to  B.,  his  surety.  A.  then  transfers  to  C, 
a  creditor,  all  his  remaining  interest  in  the  land,  without  the  knowledge  and 
not  for  the  account  of  B.,  and  afterwai'ds  transfers  such  interest  to  B. 
Held,  in  the  absence  of  fraud,  B.'s  purchase  was  not  invalid,  as  made  by  a 
trustee  ;  that  relation  having  ceased  by  A.'s  transfer  to  C.  Ball  v.  Carew, 
13  Pick.  28. 

So  a  trustee  may  become  a  purchaser,  at  a  sale  made  by  virtue  of  pro- 
ceedings prior  to  his  becoming  such.  Thus  the  assignees  of  an  insolvent 
may  purchase  land  sold  on  execution  under  a  mortgage  prior  to  the  assign- 
ment.    Fisk  V.  Lacher,  6  W.  &  S.  18. 

The  circumstance  that  the  principal  or  cestui  que  trust  has  not  relied 
upon  the  party  confidentially  employed,  but  upon  the  judgment  of  a  third 
person  mutually  referred  to,  has  been  held  to  render  the  transaction  valid. 
Bill  to  set  aside  the  lease  of  a  farm  granted  to  a  steward  by  his  employer. 
It  appeared  that  the  lease  was  for  a  term  longer  than  was  usual  on  the 
estates,  and  was  granted  at  the  solicitation  of  the  steward,  on  an  agreement 
made  before  the  subsisting  lease  had  expired,  and  at  a  rent  lower  than  was 
offered  to  the  steward  on  behalf  of  the  occupying  tenant ;  but  also  that  the 
rent  to  be  paid  had  been  fixed  by  a  surveyor  named  for  that  purpose  by  the 
employer,  and  on  a  valuation  made  in  the  surveyor's  usual  manner,  and  that 
the  offer  of  a  higher  rent  was  known  to  the  employer  before  he  executed 
the  lease.     Bill  dismissed,  with  costs.     Selsey  v.  Rhoades,  2  Sim.  &  Stu.  41. 

The  rule  does  not  apply,  unless  the  property  purchased  really  as  well  as 
nominally  belongs  to  the  cestui.  Thus,  if  the  guardian  or  trustee  for  an 
infant  heir  or  devisee,  the  real  title  being  in  a  third  person,  buy  this  title, 
this  shall  not  be  a  trust  for  the  infant.     Lesley's  case,  2  Freem.  52. 

The  general  principle  stated  in  the  text  has  been  applied  with  strictness 
to  assignees  of  bankrupts.  Thus  the  assignees  of  a  bankrupt  were  removed, 
on  the  ground  that  one  of  them  had  purchased  under  the  commission,  for 
himself.  A  resale  was  directed,  and  the  purchaser  to  account  for  a  profit 
gained  by  him  upon  a  resale  of  part.  Decreed  to  be  a  trustee  for  the  original 
vendor  as  to  the  sums  produced  by  such  second  sale.  Fox  v.  Macki-eth,  2 
Bro,  C.  C.  400. 


390  LAW   OP  VENDORS  AND   PURCHASERS.  [CH.  XXH. 

So  an  assignee,  having  thus  purchased,  was  held  a  trustee  of  tlic  profit 
upon  a  resale  ;  in  the  first  instance  for  an  equitivble  mortgagee  by  [)Ossessiou 
of  tlie  deeds,  although  he  liad  delivered  them  up  on  receiving  the  produce 
of  the  first  sale.     Ex  parte  Morgan,  12  Ves.  6.  ^^ 

So,  if  an  assignee  purchase  part  of  the  bankrupt's  estatoIRd  improve, 
the  estate  must  be  resold,  and  put  up  at  the  price  given  by  the  assignee, 
adding  the  sum  laid  out  in  improvements.     Ilewit,  2  Mont.  &  Ayr.  477. 

A  common  agent  or  solicitor  in  court,  employed  on  behalf  of  the  creditors 
of  the  estate  of  a  bankrupt  in  Scotland,  may  be  considered  in  the  nature  of 
a  trustee.  .  A  purchase,  therefore,  by  him  of  any  part  of  the  bankrupt's 
estate  may  be  set  aside ;  and  at  all  events  will  be  so,  if  there  appear  any 
circumstances  of  improper  or  negligent  conduct.  York,  &c.  v.  Mackenzie, 
8  Bro.  r.  C.  42. 

Where  a  sole  assignee  wishes  to  bid,  for  the  benefit  of  the  estate,  he  must 
be  removed,  or  a  quasi  co-assignee  appointed  to  protect  the  estate.  Ex  parte 
Molineux,  2  Mont.  &  Ayr.  245. 

An  assignee  desirous  of  purchasing  must  first  obtain  the  consent  of  the 
creditors,  and  then  petition,  and  serve  the  other  assignees,  and  also  the 
bankrupt,  with  the  petition.     Ex  parte  Bage,  4  IMadd.  459. 

The  Court  will  not  confirm  such  purchase  made  without  leave,  because  a 
meeting  of  creditors  has  consented.     Ex  parte  Thwaites,  1  Mont.  &  A.  323. 

The  mortgagee  of  a  bankrupt's  estate  may  be  allowed,  on  motion,  to  bid 
for  it.     Ex  parte  Marsh,  1  Madd.  148. 

And  the  Court  will  not  rescind  such  purchase,  though  made  without  leave 
of  Court.     Ex  parte  Ashley,  1  Mont.  &  Ayr.  82. 

So,  a  mortgagee  having  bid  without  leave,  an  order  to  bid  nwic  pro  tunc 
was  made.     Ex  parte  Pedder,  1  Mont.  &  Ayr.  327. 

A  mortgagee,  with  power  of  sale,  himself  put  up  the  premises  for  sale, 
and  then  applied  for  leave  to  bid.  Held,  he  could  not  be  permitted,  unless 
he  waived  the  power,  and  had  the  property  sold  under  the  order  of  commis- 
sioners.    Ex  parte  Davis,  1  Mont.  &  Ayr.  89. 

Similar  rules  have  been  applied  in  other  cases,  analogous  to  proceedings 
in  bankruptcy.  Thus,  where  a  trustee  for  sale  of  lands  for  payment  of  debts 
pays  to  the  value  of  the  lands,  he  thereby  becomes  a  purchaser  himself. 
Lambert  v.  Bainton,  1  Cha.  Ca.  199. 

So  a  purchase  under  a  trust  for  payment  of  debts  by  the  trustee,  as  agent 
for  his  father,  both  creditors,  in  partnership,  was  established  under  the  cir- 
cumstances, particularly  that  the  cestui  que  trust  had  full  information,  and 
the  sole  management,  making  surveys,  settling  the  particulars,  fixing  the 
prices,  &c.     Coles  v.  Trecothick,  9  Ves.  234  ;  1  Smith,  233. 

W.  being  indebted  to  C,  agreed  by  deed  to  convey  his  estate  to  C.  upon 
trust  to  sell  the  same,  and  to  pay  oflf  certain  debts  of  W.  due  to  other  per- 
sons, and  then  his  own  debt,  and  to  pay  over  the  surplus,  if  any,  to  W. 


CH.  XXII.]  TRUST,   ETC.  397 

No  conveyance  was  executed.  C,  being  afterwards  in  possession,  under  a 
fi.  fa.  issued  on  a  judgment,  upon  a  warrant  of  attorney  given  by  W., 
agreed  with  W.'s  agent  to  purchase  the  estate.  W.  ratified  the  contract, 
but  subsequently  impeached  it  as  one  made  by  a  trustee  for  his  own  benefit, 
and  against  the  interest  of  the  cexlui  que  trust.  Held,  that  C.  was  not  a 
trustee  for  W.,  but  was  a  creditor,  holding  a  security  for  his  debt,  and  that 
the  contract  of  sale  was  valid.     Waters  v.  Groom,  11  Cla.  &  Fin.  684. 

A  trustee,  who  has  purchased  the  trust  property  and  sold  it  at  a  profit, 
and  is  compelled  by  a  suit  in  equity  to  refund  that  profit,  will  not,  except 
in  case  of  moral  fraud,  be  charged  with  costs.  Baker  v.  Carter,  1  You.  & 
Coll.  250. 

But,  where  trustees  for  sale  purchased  through  a  trustee,  at  an  under- 
value, though  without  fraud,  and  by  auction  ;  and  the  cestuis  were  infants, 
incapable  of  discharging  the  trustees ;  the  purchase  was  set  aside,  with  costs. 
Sanderson  v.  Walker,  13  Ves.  601. 

The  following  was  a  form  of  decree  against  a  trustee,  purchasing  at  an 
alleged  undervalue,  and  making  permanent  improvements :  "  It  is  ordered 
that  the  trustee  shall  be  declared  purchaser  of  the  premises  at  the  present 
value  ;  which  is  not  to  be  less  than  the  price  of  the  original  purchase,  with 
the  permanent  improvements.  But,  if  the  Court  shall  ultimately  decide  that 
he  ought  to  be  alloAved  the  value  of  the  improvements,  or  any  part  thereof, 
then  so  much  of  the  purchase-money  as  relates  to  the  improvements  is  to  be 
allowed  as  already  paid  by  him."     Williamson  v.  Seaber,  3  You.  &  Coll.  717. 

So  a  trustee  for  sale  for  payment  of  debts,  who  purchased,  himself,  by 
taking  undue  advantage  of  the  confidence  reposed  in  him  by  the  plaintiif, 
and,  previous  to  the  completion  of  the  contract,  sold  at  a  highly  advanced 
price ;  was  discharged  from  the  purchase  only  conditionally,  in  case  the 
resale  should  produce  more.     Ex  parte  Reynolds,  5  Ves.  707. 


34 


398 


LAW    OF  VENDORS   AND   PURCHASERS.         [CH.  XXIII. 


CHAPTER    XXIII. 


NOTICE. 


1.  General  principles  as  to  notice. 

4.  Jixpress  and  iinplicd  notice. 

5.  Notice  satlicicnt  to  demand  inquiry. 

6.  Implied  notice,  chiefly  as  arisin<^ 
from  possession  under  an  unrecorded 
deed. 


10.  Notice,  to  whom  given;  agents, 
solicitors,  &c. 

13.  Bij  whom. 

14.  Notice,  in  cases  of  lease  and  ten- 
ancy. 

22.  Lis  pendens. 


1.  Having  in  the  foregoing  chapters  considered  the  causes, 
by  which  a  contract  for  the  sale  and  purchase  of  lands  may 
be  avoided  as  between  the  parties  themselves ;  we  proceed 
to  inquire,  under  what  circumstances  a  contract  binding 
upon  the  parties  is  valid  or  void,  as  to  third  persons  having 
an  interest  in  the  property  bargained  for.  This  question 
commonly  tiu*ns  upon  the  point  of  notice  ;  it  being  the  gen- 
eral rule  of  equity,  where  questions  of  this  nature  usually 
arise,  that  a  purchaser  with  notice,  or  one  informed  of  an 
existing  contract  in  reference  to  the  property  purchased, 
although  it  have  not  been  actually  conveyed ;  takes  the 
property  subject  to  that  contract,  and  will  be  compelled  to 
execute  it.  In  the  English  law,  the  subject  of  notice  has 
given  rise  to  very  numerous  and  various  questions,  and  very 
subtile  distinctions,   (a)    connected   more   particularly  with 


(a)  The  English  Equity  Reports  abound  with  cases,  which  turn  upon  the 
effect  of  express  or  implied  notice  ;  while  American  cases  of  this  description 
are  comparatively  rare,  except  as  connected  with  the  single  point  of  regis- 
tration ;  showing  that  the  subject  does  not  require  to  be  exhibited  in  all  its 
complicated  details,  in  a  practical  American  treatise.  Moreover,  a  large 
proportion  even  of  the  American  cases  relate,  not  to  mere  contracts,  but  to 
executed  conveyances,  which  do  not  fall  within  the  plan  of  the  present  work. 
The  collateral  topics  of  Fraud,  Estoppel,  Trust,  Mortgage,  and  others  equally 


CH.  XXm.]  NOTICE.  395 

actual  or  constructive  fraud;  but  in  the  United  States  these 
have  become  to  a  great  extent  unimportant  and  inapplicable, 
by  reason  of  the  registration  system  which  universally  pre- 
vails, and  by  which  the  recording  of  an  instrument  according 
to  law  is  generally  deemed  an  equivalent  or  substitute  for 
actual  notice,  as  to  all  the  world.  We  propose,  therefore, 
only  to  state  a  few  of  the  leading  principles,  which  seem  to 
be  well  established  by  the  weight  of  authority,  [a) 


copious,  into  all  of  which  Notice  enters,  as  a  leading  element,  would  lead  to 
inquiries  of  great  interest,  but  foreign  from  the  design,  and  wholly  incon- 
sistent with  the  limits,  of  this  book. 

(a)  The  rules  as  to  notice  are  held  to  apply  only  for  the  protection  of 
the  prior  equitable  rights  of  third  persons  against  subsequent  purchasers, 
claiming  adversely  ;  not  to  controversies  between  the  vendor  and  purchaser. 
Champlin  v.  Laytin,  6  Paige,  189. 

It  is  said,  "  Valid  transactions,  as  between  the  parties,  may  be  fraudulent 
by  reason  of  covin,  collusion,  or  confederacy  to  injure  a  third  person ;  for 
instance,  A.  buys  an  estate  from  B.  and  forgets  to  register  his  purchase- 
deeds  ;  if  C,  with  express  or  implied  notice  of  this,  buys  the  estate  for  a 
full  price,  and  gets  his  deeds  registered,  this  is  fraudulent,  because  he  assists 
B.  to  injure  A."     Per  Ld.  Mansfield,  Worseley  v.  De  Mattos,  1  Burr.  474. 

So  it  was  remai'ked  by  another  eminent  Judge:  "  Taking  of  a  legal  estate 
after  notice  of  a  prior  right,  makes  a  person  a  mala  fide  purchaser.  This  is 
a  species  of  fraud,  and  dolus  malus  itself;  for  he  knew  that  the  first  pur- 
chaser had  the  clear  right  of  the  estate,  and  after  knowing  that,  he  takes 
away  the  right  of  another  person  by  getting  the  legal  estate.  And  this 
exactly  agrees  with  the  definition  of  the  civil  law  of  dolus  malus.  Dig.  lib.  4, 
tit.  3,  lex  2.  Fraud  or  mala  fides,  therefore,  is  the  true  ground  on  which  the 
Court  is  governed  in  cases  of  notice.  Per  Ld.  Hardwicke,  Le  Neve  v, 
Le  Neve,  3  Atk.  654. 

So  it  has  been  said  to  be  mischievous  to  consider  the  registry  as  notice  to 
all  intents.     Bushell  v.  Bushell,  1  Scho.  &  Lef.  103. 

Even  the  familiar  maxim,  ^^ignorantia  legis  neminem  excusat"  has  been  dis- 
pensed with  in  reference  to  registry.  Thus  a  statute  was  made  in  Ireland, 
that  all  leases  not  registered  by  such  a  day  should  be  void.  The  respondent, 
who  lived  in  the  remotest  part  of  Ireland,  not  having  notice  of  the  Act,  did 
not  register ;  whereupon  another  lease  was  made  to  one  who  had  notice  of 
the  first,  and  registered,  and  ejectment  brought  upon  it ;  but  the  respondent 
was  relieved.     Forbes  v.  Deniston,  4  Bro.  P.  C.  189. 

Annuity  granted  out  of  lands  in  Middlesex,  and  without  registry.  One  hav- 


400  LAW    OP   VENDORS   AND    PUllCnASERS.  [ciI.  XXIII. 

2.  It  is  held  that  if  A'.,  after  agreeing  to  sell  to  B.,  sells 
and  conveys  to  C,  who,  before  he  purchased,  had  been  told 
"  that  A.  had  sold  the  premises  to  B. ;  that  B.  had  purchased 
it,  and  had  an  article  for  it ; "  C.  does  not  stand  in  the  situa- 
tion of  a  bond  fide  purchaser  without  notice,  entitled  to  the 
special  favor  of  the  Court.  Having  purchased  the  title  of 
A.,  with  notice  of  at  least  some  claim  on  the  part  of  B,,  he 
stands  in  no  better  situation  than  A.  himself,  and  must  stand 
or  fall  by  the  merits  of  the  case,  as  it  exists  between  A.  and 
B.^  («)  So  a  parol  agreement  for  a  purchase,  and  possession 
delivered,  was  decreed  to  be  performed  against  a  subsequent 
purchaser  with  notice,  who  had  a  conveyance  and  paid  his 
money.2 

3.  A  purchaser  with  notice,  from  one  without  notice,  is 
held  a  bond  fide  purchaser.^  So  a  bond  fide  purchaser,  for 
valuable  consideration,  is  protected  under  the  statutes  of  13 
and  27  Eliz.,  whether  he  purchases  from  a  fraudulent  grantor 
or  grantee,  and  whether  the  first  deed  was  made  to  defraud 
subsequent  creditors  or  subsequent  purchasers.* 

4.  Notice  is  either  express  and  actual  or  implied  and  con- 
structive ;  (b)  but,  it  is  said,  there  is  no  difference  between 
actual  and  constructive  notice  in  its  consequences ;  ^  and  the 

1  Kin<;  v.  Morford,   1  Saxt.  Ch.  274.         ^  Lowther  i'.  Carlton,  3  Atk.  241. 
But  see  Bradbyn  v.  Ord,  2  Atk.  241.  *  Hood  v.  Fahnestock,  8  Watts,  489. 

2  Butcher  v.  Stapley,  1  Vern.  363.  5  2  Sugd.  537. 

ing  notice  of  tliis  grant  purchases  the  inheritance.  The  grantee  shall  have 
his  annuity  against  the  purchaser.  Chivall  v.  Nicholls,  Stu.  664.  See  Beatnifif 
V.  Smith,  1  Eq.  Ca.  Abr.  357,  pi.  11  ;  Blades  v.  Blades,  1  Eq.  Ca.  Abr.  358, 
pi.  12 ;  Hine  v.  Dodd,  2  Atk.  275  ;  Le  Neve  v.  Le  Neve,  3  Atk.  646 ;  Shel- 
don V.  Cox,  Ambl.  624  ;  Jolland  v.  Stainbridge,  3  Ves.  478. 

(a)  Upon  the  same  principle,  where  one  purchases  an  estate,  pays  part 
of  the  price,  and  gives  bond  to  pay  the  residue,  subsequent  notice  of  an 
equitable  incumbrance  before  such  payment  is  sufficient.    Tourville  v.  Naish, 

3  P.  Wms.  307  ;  Story  v.  Windsor,  2  Atk.  630;  More  v.  Mayhew,  1  Cha. 
Ca.  34;  2  Freem.  175,  pi.  235.  So,  notice  of  an  incumbrance  after  pay- 
ment, but  before  a  deed  is  executed.     Wigg  v.  Wigg,  1  Atk.  384. 

(b)  Express  notice  of  a  deed  is  equivalent  to  recording.    Knotts  v.  Geiger, 

4  Rich.  32  ;  Draper  v.  Bryson,  17  Mis.  71. 


CH.  XXm.]  NOTICE.  401 

terms  actual  and  constructive  are  said  to  be  indefinite  with 
reference  to  notice.^  Actual  notice  is  such  as  men  usually 
act  upon  in  the  ordinary  affairs  of  life  ;  not  positive  and  cer- 
tain knowledge  (in  reference  to  a  prior  deed)  of  its  exist- 
ence, as  by  seeing  it,  or  being  informed  of  it  by  the  grantor 
himself.^ 

5.  But,  beyond  this,  it  is  held  that  any  notice  is  sufficient, 
which  should  put  a  party  on  inquiry?  {a)  Information,  which 
makes  it  the  duty  of  a  party  to  inquire,  and  shows  where 
such  an  inquiry  may  be  effectual,  is  notice  of  all  facts,  which 
might  be  thereby  ascertained,  after  a  reasonable  time  for 
making  the  inquiry.'^  No  purchaser  is  at  liberty  to  remain 
intentionally  ignorant  of  facts  relating  to  his  purchase,  within 
his  reach,  and  then  claim  protection  as  an  innocent  pur- 

1  Jordan  r.  Pollock,  14  Geo.  145.  soil,  15  Penn.  343;  Smith   v.  Low,  1 

2  Curtis  V.  Mundy,  3  Met.  405.  Atk.  489. 

3  Gibbes  V.  Cobb,  7  Rich.  Eq.  54;  *  Carr  w.  Hilton,  1  Curt.  390;' Ring- 
Rupert  V.  Mark,  15  111.  540 ;  M'Gehce  v.  gold  v.  Bryan,  3  Md.  Ch.  488  ;  Stockett 
Gindrat,  20  Ala.  95 ;  Sergeant  v.  Inger-  v.  Taylor,  3  Md.  Ch.  537. 

(a)  Where  the  creditor  of  a  publican  in  London  took  from  the  latter  a 
legal  mortgage  of  copyhold,  knowing  that  the  publican  was  indebted  to  his 
brewers,  and  also  knowing  the  ordinary  practice  in  London  of  publicans' 
depositing  their  leases  with  their  brewers  by  way  of  mortgage ;  held,  such 
notice  as  would  have  put  a  prudent  man  on  further  inquiry;  and  that  the 
equitable  security  had  priority.    Whitbread  v.  Jordan,  1  You.  &  Coll.  303. 

It  is  to  be  observed,  that  some  authorities  exact  more  stringent  express 
notice  than  that  stated  in  the  text.  Thus  it  is  said,  to  show  express  notice 
the  proof  must  be  "  clear  and  unequivocal."  Per  Wilde,  J.,  M'Mecban  v. 
Griffing,  3  Pick.  154.  So  it  is  said,  "  Smpicion  of  notice,  though  a  strong 
suspicion,  is  not  sufficient  to  justify  the  Court  in  breaking  in  upon  an  act  of 
parliament."  Per  Lord  Hardwicke,  Hine  v.  Dodd,  2  Atk.  275  ;  6  Barb.  60. 
So  it  has  been  held,  that  notice  of  an  unrecordecl  deed  must  be  proved  be- 
yond all  reasonable  doubt.  Rogers  v.  Wiley,  14  111.  65.  So,  that  it  must  be 
direct  and  positive  or  implied,  not  merely  sufficient  to  put  the  party  on  in- 
quiry.    Nor  is  a  suspicion  of  notice  sufficient.     Fort  v.  Bunch,  6  Barb.  60. 

The  purchaser  said,  in  a  conversation  with  a  third  person,  about  the  time 
of  the  purchase,  that  "  he  had  understood  that  (his  grantor)  had  fooled 
away  the  lot,  and  had  sold  it  several  times,  and  did  not  consider  it  worth  his 
trouble  to  look  about  it."  Held,  this  conversation  did  not  justify  an  infer- 
ence of  notice.  Jackson  v.  Given,  8  Johns.  107. 
34* 


402  LAW   OF  VENDORS   AND   PURCHASERS.        [CH.  XXIII. 

chaser.'  Thus,  where  a  person  other  than  the  grantor  is  in 
possession,  it  is  the  purchaser's  duty  to  inquire  into  the  title, 
and  the  presumption  of  law  is,  that  upon  such  inquiry  he 
ascertains  the  true  state  of  the  title ;  unless  he  makes  such 
inquiry,  a  fraudulent  intent  in  making  the  purchase  is  pre- 
sumed.^ (a)  So  notice  of  a  judgment  against  a  vendor  is 
sufficient  to  put  a  purchaser  upon  further  inquiry.  Hence,  if 
instead  of  a  judgment  the  party  has  a  specific  incumbrance 
on  the  property,  the  purchaser  will  be  bound  by  it.^  But 
notice  to  a  purchaser  of  judgments  against  the  vendor, 
whose  estate  is  limited  to  uses  to  bar  dower,  does  not  pre- 
vent the  purchaser  from  taking  the  estate  free  from  the 
judgments,  under  an  exercise  of  the  power  reserved  to  the 
vendor."^  So  notice  to  a  purchaser  that  there  is  a  lease 
is  notice  of  its  contents.^  So  notice  of  possession  by  a 
tenant  is  notice  of  his  interest.^  So,  of  his  interest,  either 
as  tenant,  or  further,  by  an  agreement  to  purchase.'^  So 
a  purchaser,  with  notice  of  the  tenant's  possession  of  part 
of  the  estate,  has  constructive  notice  of  the  whole  of  the 
tenant's  interest.^  So,  although  notice  to  a  purchaser  in  one 
transaction  will  not  affect  him  in  an  independent  subsequent 
one ;  notice  of  a  deed  is  notice  of  the  whole  of  its  contents, 
so  far  as  they  can  affect  the  transaction  in  which  such  notice 
is  acquired.^ 

6.  The  class  of  cases  which  has  given  rise  to  the  most 
numerous  questions  as  to  notice,  is  that  of  implied  or  con- 

1  Jenkins  v.  Eldredge,  2  Story,  181.  ^  Heirn  v.  Mill,  13  Ves.  114. 

'^  McLaughlin  V.  Shepherd, 32  Maine,        ^  Daniels  v.  Davison,  16  Ves.  249. 
143.  8  Powell  y.  Dillon,  2  Ball  &  Beat.  416. 

^  Taylor  v.  Bakei',  Dan.  T^ .  ^  Hamilton  v.  Royse,  2  Scho.  &  Lef. 

*  Eaton  V.  Sanxter,  6  Sim.  517.  327. 
5  Hall  V.  Smith,  14  Ves.  426. 


(fl)  But  constructive  notice  of  title  is  not  sufficient  to  postpone  the  owner 
of  land  to  a  purchaser  having  equal  notice,  because  the  owner,  knowing  of 
the  intended  sale,  permits  it  without  objection  ;  unless  there  be  actual  notice 
of  his  right,  or  positive  acts  inducing  the  purchase.  Paul  v.  Squibb,  12 
Penn.  296. 


CH.  XXIII.]  NOTICE.  403 

structive  notice,  usually  arising  from  the  occupation  and 
improvement  of  the  land,  by  one  not  having  a  perfect  legal 
title.  On  the  general  subject  of  implied  notice,  involving  in 
part,  however,  what  has  been  already  suggested  with  regard 
to  a  certain  kind  of  express  notice  ;  [a)  it  is  held  that  the 
doctrine  of  constructive  notice  applies  in  two  cases ;  first, 
where  the  party  charged  has  notice  that  the  property  in  dis- 
pute is  incumbered,  or  in  some  way  affected,  in  which  case 
he  is  deemed  to  have  notice  of  the  facts  and  instruments,  to 
a  knowledge  whereof  he  would  have  been  led  by  due  inquiry 
after  the  fact  which  he  actually  knew  ;  and,  secondly,  where 
the  conduct  of  the  party  charged  evinces  that  he  had  a  sus- 
picion of  the  truth,  and  wilfully  or  fraudulently  determined 
to  avoid  receiving  actual  notice  of  it.^ 

7.  But,  as  has  been  stated,  the  terms  implied  notice  are 
commonly  applied  to  the  inference  arising  from  possession  of 
the  land.  Our  plan  does  not  lead  to  a  statement  of  the 
numerous  cases  of  this  class,  in  which  a  subsequent  recorded 
conveyance  is  relied  upon  on  one  side,  and  a  prior  unre- 
corded conveyance  on  the  other ;  the  second  grantee  being 
alleged  to  have  implied  notice  of  the  former  deed,  growing 
out  of  the  occupation  of  the  first.  The  questions  arising 
from  a  mere  sale  of  the  land,  not  consummated  by  a  con- 
veyance, have  been  comparatively  rare  ;  but  the  principle 
involved  is  substantially  the  same ;  and  indeed  a  convey- 
ance not  registered  bears  a  very  close  analogy  to  a  mere 
executory  contract,  [b)     Thus  it  has  been  held,  that,  where  a 

1  Jones  V.  Smith,  1  Hare,  43. 


(a)  Meaning  by  express  notice,  that  which  is  expressly  communicated, 
though  not  in  such  a  way  or  from  such  a  source  as  to  be  absolute  and  posi- 
tive, in  contradisti/ictlon  to  that  which  is  to  be  inferred  from  facts  and  cir- 
cumstances. Such  is  the  notice,  which  is  held  sufficient  to  put  a  party  on 
inquiry.     See  Howorth  v.  Deem,  1  Ed.  351. 

(b)  The  defendant,  under  the  belief  that  he  had  the  fee-simple  in  an 
estate,  subject  to  a  life  interest  in  his  mother,  who  really  was  the  owner  in 
fee,  conveyed  all  his  interest  to  trustees  for  the  benefit  of  his  creditors,  with 


404  LAW   OF  VENDORS   AND   PURCHASERS.         [cn.  XXIII. 

parol  sale  of  lands  has  been  made,  money  paid,  and  posses- 
sion delivered,  the  contract  is  good  between  the  parties,  but 
not  against  a  bond  fide  purchaser,  without  clear  evidence  of 
notice  to  him,  either  actual  or  legal ;  that  legal  notice  exists 
only  where  there  is  a  violent  presumption  of  actual  notice ;  and 
that  undisturbed  possession  by  the  equitable  owner  has  gen- 
erally been  considered  legal  notice ;  but  it  must  be  a  clear, 
unequivocal  possession.  Hence,  where  A.  bought  by  parol 
from  B.  a  corner  of  B.'s  tract,  paid  for  it,  was  put  into  posses- 
sion, and  had  buildings  erected,  but  at  the  same  time  had  no 
survey  of  the  part,  or  other  admeasurement  to  reduce  it  to 
certainty,  and  on  B.'s  own  part  there  was  a  forge,  dwelling- 
house,  grist  and  saw  mill,  and  buildings  for  the  workmen, 
which,  with  A.'s  building,  might  sti'ike  the  eye  as  one  estab- 
lishment ;  the  possession  of  A.  was  held  not  to  be  legal 
notice  of  his  title  to  a  purchaser  at  sheriff's  sale,  under  a 
judgment  against  B. ;  but  the  equity  of  such  purchaser  would 
prevail ;  particularly  if  A.  gave  no  actual  notice  of  his  title, 
when  he  probably  knew  of  the  judgment,  execution  and 
sale.^ 

8.  Under  an  agreement  of  exchange  between  A.,  who  held 
lands  under  a  college  lease,  and  B.,  the  owner  of  an  adjoin- 
ing estate,  B.  occupied  part  of  the  college  lands,  and  A.  had 
occupied,  along  with  the  residue  of  the  leasehold,  part  of 
B.'s  estate.  A.  having  become  bankrupt,  the  college  lease- 
hold was  sold,  and  was  described  in  the  particulars  of  sale  as 
"  late  the  residence  of  A."  Held,  the  purchaser  was  not  to  be 
considered  as  having  implied  notice  of  the  exchange,  and 
had  a  right  to  recover  that  portion  of  the  leasehold  which 
was  in  B.'s  occupation.^ 

'  Billington  v.  Welch,  5  Binn.  129,  ^  mhcs  v.  Langley,  1  Russ.  &  Myl. 
131.  39  ;  2  Ibid.  626. 


covenants  for  title  and  for  further  assurance.  Upon  her  death  the  fee  de- 
scended to  him.  Held,  although  not  a  valid  conveyance,  the  transaction 
amounted  to  a  contract  for  sale,  which  the  defendant  was  in  equity  com- 
pellable to  execute.     Smith  v.  Baker,  1  You.  &  Coll.  223. 


CH.  XXTH.]  NOTICE.  405 

9.  In  case  of  an  unrecorded  prior  conveyance,  it  has  been 
sometimes  held,  that  the  possession  of  the  grantee  is  of 
itself  constructive  notice,  equivalent  to  that  derived  from 
registration,  (a)  But  the  prevailing  doctrine  is  now  other- 
wise. Thus  it  is  said,^  "  the  doctrine  in  the  English  law  of 
constructive  notice  of  the  title  of  the  lessee,  or  party  in 
the  possession,  is  not  favored  in  the  American  Courts."  So 
Judge  Story  says,  "  The  American  Courts  seem  indisposed 
to  give  etiect  to  this  doctrine  of  constructive  notice  from 
possession,  even  in  its  most  limited  form.  The  English 
cases  admonish  Courts  of  Equity  in  this  country,  where  the 
registration  of  deeds,  as  matters  of  title,  is  universally  pro- 
vided for,  not  to  enlarge  the  doctrine  of  constructive  notice, 
or  to  follow  all  the  English  cases  on  this  subject,  except  with 
a  cautious  attention  to  their  just  application  to  the  circum- 
stances of  our  country,  and  to  the  structure  of  our  laws."  ^ 
So  it  is  held  in  Massachusetts,  that,  although  open  and 
notorious  possession  and  improvement  of  real  estate  has 
generally  been  held  sufficient  constructive  notice  of  a  deed ; 
yet  the  evidence  must  have  been  such  as  to  render  the  in- 
ference not  merely  probable,  but  necessary  and  unquestion- 
able. Thus  it  was  held  not  to  arise,  where  an  owner  of 
land  purchases  land  adjoining  and  not  separated  by  a  fence, 
and  principally  woodland,  repairs  the  fence,  pastures  cattle, 
and  sells  trees.^  And  it  has  since  been  held,  as  a  general 
rule,  that  open  and  visible  possession,  cultivation,  and  the 
making  of  permanent  improvements  are  insufficient  notice 

1  4  Kent,  179,  n.  3  M'Mechan  v.  Griffing,  3  Pick.  149. 

2  Flagg  V.  Mann,  2  Sumn.  291,  555,     Sec  Butler  v.  Stevens,  26  Maine,  484. 
556.     But  see  Matthews  v.  Demerritt, 

22  Maine,  312. 

(a)  In  Illinois,  a  late  case  so  decides.  Rupert  v.  Mark,  15  Illin.  540. 
See  Mill  v.  Hill,  22  Eng.  L.  &  Eq.  20. 

It  has  been  recently  held  in  Michigan,  that,  although  the  possession  and 
improvements  of  a  purchaser  do  not  constitute  actual  notice  of  an  unre- 
corded deed,  within  the  terms  of  the  statute ;  still  they  make  such  an 
adverse  possession,  as  will  render  the  subsequent  conveyance  void  at  com- 
mon law.     Hubbard  v.  Smith,  2  Mich.  207. 


406  LAW  OF  VENDORS  AND  PURCUASERS.    [CH.  XXIII, 

of  an  unrecorded  deed.^  (a)  So  it  has  been  held  in  New 
Hampshire,  that,  in  order  to  have  this  effect,  the  possession 
must  be  exclusive  and  unecjui vocal — a  mixed  possession  is 
not  surticient.'-^  {b) 

10.  Notice  to  one,  who  purchases  or  sells  for  another, 
affects   the   latter.^  (r)      So    notice  to  a  solicitor  is   actual 

'  I'omroy  v.  Stevens,  11  Met.  244.  1  Eq.  Ca.  Abr.  330;  Maddox  v.  Mad- 

2  Bell  P.  Twilight,  2  Fost.  500.  dox,  1  Ves.  61 ;  Sheldon  v.  Cox,  Ambl. 
8  Merry  v.  Abney,   I  Cha.  Ca.  38  ;        624. 

(a)  Where  a  deed  is  made  and  recorded,  with  a  defeasance  back,  which 
is  not  recorded,  the  continued  possession  of  the  grantor  is  not  implied  notice 
of  such  defeasance.     Hennessey  v.  Andrews,  6  Gush.  170. 

(h)  It  is  held,  that  even  registration  is  not  constructive  notice,  unlesp 
authorized  by  law ;  as  in  case  of  an  unacknowledged  deed.  Johns  v.  Rear- 
don,  3  Md.  Ch.  57.  Or  an  unsigned  deed;  although  the  signature  be 
subsequently  registered,  but  unseasonably.  Shepherd  v.  Burkhalter,  13 
Geo.  443.  Ace.  Dennis  v.  Loftin,  6  Tex.  489  ;  Brown  v.  Budd,  2  Cart.  442. 
See  Delane  v.  Moore,  14  How.  U.  S.  253.  So  registry  of  a  defective  deed 
is  void.  Popeu.  Henry,  24  Verm.  560.  In  order  to  maintain  a  title  against 
a  prior  unrecorded  deed,  the  purchaser  must  prove  payment  of  a  valuable 
consideration.  The  recitals  in  his  deed  are  not  evidence  of  such  payment. 
Nolen  0.  Gwynn,  16  Ala.  725.  The  rule,  that  a  purchaser  for  valuable 
consideration,  without  notice,  is  protected  by  the  legal  estate,  applies  where 
his  title  is  impeached,  not  only  by  some  secret  act  of  the  vendor  or  those 
under  whom  he  claims,  but  by  the  falsehood  of  a  fact  of  title  asserted  by  the 
vendor  or  those  under  whom  he  claims  ;  provided  such  title  is  clothed  with 
possession,  and  the  falsehood  could  not  have  been  discovered  by  reasonable 
diligence.    Jones  v.  Powles,  3  Myl.  &  Kee.  581. 

A  defendant,  stating  by  answer  a  purchase  for  valuable  consideration 
■without  notice,  shall  not  be  compelled  to  answer  further.  And  equity  will 
not  take  the  least  step  against  such  purchaser,  not  even  to  perpetuate  testi- 
mony against  him.     Jerrard  v.  Saunders,  2  Ves.  454. 

Bill  by  tenant  in  tail,  in  possession  under  a  marriage  settlement,  for  dis- 
covery and  delivery  of  title-deeds.  Plea,  mortgage  by  the  tenant  for  life, 
alleging  himself  to  be  seised  in  fee,  and  in  possession  of  the  premises  and 
deeds  as  apparent  owner.  Plea  allowed ;  upon  the  rule  that  equity  gives 
no  assistance  against  a  purchaser  for  valuable  consideration  without  notice. 
Wallwynn  v.  Lee,  9  Ves.  24.  But,  if  a  person  will  purchase  with  notice  of 
another's  right,  giving  a  consideration  will  not  avail  him.     Mead  v.  Orrery, 

3  Atk.  238. 

(c)  Because  otherwise,  as  is  said,  a  man  who  had  a  mind  to  get  another's 


CH.  XXIII.]  NOTICE.  407 

notice  to  the  client.'  Thus  A.,  having  notice  of  an  incum- 
brance, purchases  in  the  name  of  B.,  who,  however,  neither 
employed  A.,  nor  knew  that  the  purchase  was  to  be  made. 
A.  then  agrees  that  B.  shall  be  the  purchaser,  and  B.  accord- 
ingly pays  the  purchase-money,  without  notice  of  the  incum- 
brance. Held,  that  B,,  by  approving  the  purchase,  made  A. 
his  agent,  ab  initio,  and  therefore  was  affected  with  the 
notice  to  A.'-^  So  mere  implied  notice  to  an  agent  binds  the 
principal.^  But  the  rule,  that  a  purchaser  is  in  equity  charge- 
able with  constructive  notice  of  the  contents  of  a  deed, 
which  came  to  the  knowledge  of  his  agent  in  the  investiga- 
tion of  the  title,  does  not  apply  as  between  the  vendor  and 
the  purchaser ;  it  applies  only  as  between  the  purchaser  and 
third  persons  having  prior  equitable  rights.*  So  A.  agrees 
to  take  a  lease,  but,  previous  to  signing  the  articles,  has 
notice  that  B.  has  a  prior  agreement  for  a  lease,  and  procures 
the  lease  to  be*  granted  to  his  son.  Held,  this  notice  affected 
the  son,  and  that  he  should  deliver  up  the  possession.^ 

11.  If  the  same  person  is  agent  both  for  the  vendor  and 
purchaser,  or  is  himself  vendor  and  agent  for  the  purchaser, 
whatever  notice  he  may  have  will  affect  the  purchaser.^ 
Thus  a  purchaser,  having  employed  the  vendor's  agent,  who 
had  notice  of  an  incumbrance,  was  charged  with  notice, 
though  the  purchase  was  made  under  the  sanction  of  the 
Court,  and  an  infant  was  interested  in  it.'''    So,  after  the  com- 

'  Tunstall  v.  Trappcs,  3  Sim.  301.  &  Coote  v.  Mammon,  5  Bvo.  P.  C.  355. 

■^  Jennings  v.  Moore,  2  Vein.  609.  ^  Dryden  v.  Frost,  3  Myl.  &  Cra.  670  ; 

^  Attv.-Geu.  V.  Gower,  3  Eq.  Cas.  Maioribanks   v.    Hovenden,  6  Ir.   Eq. 

Abr.  685,  pi.  11.  238. 

*  Champlin  v.  Lay  tin,  18  Wend.  407.  '   Toulrain  v.  Steere,  3  Mer.  210. 

estate  might  shut  his  own  eyes,  and  employ  another  to  treat  for  him,  who 
had  notice  of  a  former  title,  which  would  be  a  manifest  cheat.  Attorney- 
General  V.  Gower,  3  Eq.  Ca.  Abr.  685,  PI.  11.  Notice  to  an  attorney  or 
agent  is  not  to  be  considered  as  implied  or  constructive  notice  merely, 
which  is  properly  referable  to  something  that  a  party  or  his  agent  ought,  if 
reasonable  diligence  had  been  used  on  his  behalf,  to  have  acquired  a  knowl- 
edge of,  but  which  possibly  neither  he  nor  his  agent  ever  did  know  or  ac- 
quire any  knowledge  of.     Lenehan  v.  M'Cabe,  2  Ired.  Eq.  342. 


408  LAW   OF   VENDORS   AND   PURCHASERS.         [CH.  XXHl. 

mencement  of  a  treaty  for  the  sale  of  an  estate  by  A.,  and 
the  purchase  of  it  by  B.,  A.  agreed  to  give  C.  a  mortgage 
as  security  for  an  antecedent  debt,  and  notice  of  the  agree- 
ment was  given  to  the  solicitors  of  B.  The  treaty  for  the 
sale  afterwards  ceased  for  upwards  of  five  years,  during  part 
of  which  time  the  suit  of  an  adverse  claimant  was  pending. 
A.  then  died,  and  B.  purchased  the  estate  at  a  lower  price 
from  his  heir  and  devisee,  and  mortgaged  to  D.  The  same 
solicitors  were  concerned  for  B.,  from  the  commencement  of 
the  treaty  until  the  final  purchase,  and  for  D.  in  the  business 
of  the  mortgage.  Held,  B.  and  D.  had  constructive  notice 
of  the  agreement  with  C,  and  the  estate  in  their  hands  was 
subject  to  the  lien  of  C,  for  the  amount  agreed  to  be  secured 
by  the  proposed  mortgage.^ 

12.  As  notice,  in  order  to  affect  a  purchaser  himself,  should 
be  confined  to  the  same  transaction  ;'^  a  fortiori  notice  to  an 
agent  or  counsel,  who  was  employed  in  the  thing  by  another 
person,  or  in  another  business,  and  at  another  time,  is  no 
notice  to  his  client,  who  employs  him  afterwards.^  Thus 
where,  by  a  transaction  foreign  to  the  business  in  hand,  a 
counsel  or  attorney,  employed  to  look  over  a  title,  has  notice, 
that  shall  not  affect  the  purchaser.^  So,  though  the  agent 
acted  as  attorney  for  the  vendor  and  vendee.^  Otherwise, 
where  one  transaction  is  closely  followed  by,  and  connected 
with,  another ;  or  where  it  is  clear  that  a  previous  transac- 
tion w^as  present  to  the  mind  of  a  solicitor,  when  engaged 
in  the  subsequent  one.^  So  where  the  former  transaction  is 
so  recent,  or  so  closely  connected  with  the  latter,  that  it 
must  be  presumed  that  the  agent  remembered  it.'' 

13.  To  constitute  a  binding  notice,  it  must  be  given  by 

'  Fuller  V.  Bennett.  2  Hare,  394.  Dodd,  2  Atk.  275  ;  Ashley  v.  Baillie,  2 

2  Warrick  v.  Warrick,  3  Alk.  290.  Ves.  368. 

3  Worsley   v.   Scarborough,   3    Atk.  ^  Mountford  v.    Scott,   3   Mad.  34  ; 
392.  Turn.  &  Russ.  274. 

*  Lowther  ?>.    Carlton,   2   Atk.  241  ;  ^  Hargrcaves  v.  Rothwell,  1  Kee.  154. 

Preston  v.  Tuhbin,  1  Vern.  286  ;  Fitz-  "^  Majorihanks   v.    Hovenden,   6    Ir, 

gerald   v.   Fauconberge,   Fitzgib.  297  ;  Eq.  Rep.  238  ;  Lenehan  v.  McCabe,  2 

Warrick  v.  Warrick,  3  Atk.  291  ;  Steed  Ibid.  342. 
V.    Whitaker,    Barnard.    220 :  Hine   v. 


GIL  XXIII.]  NOTICE.  409 

• 

one  interested  in  the  property,  and  in  the  course  of  the  treaty 
for  the  purchase,  (a)  Vague  reports  from  persons  not  inter- 
ested in  the  property  will  not  affect  the  purchaser's  con- 
science, nor  will  he  be  bound  by  notice  in  a  previous  trans- 
action which  he  may  have  forgotten.^  Thus  one  person 
came  to  another,  who  was  about  to  purchase  a  house,  and 
told  him  to  take  heed  how  he  bought  it,  for  the  vendor  had 
nothing  in  it,  but  upon  trust  for  A. ;  and  another  person 
came  to  him,  and  told  him  it  was  not  so,  for  the  vendor  was 
seized  of  the  land  absolutely.  Held,  although  the  first  in- 
formation was  correct,  it  was  not  legal  notice.^  So  land 
given  to  charitable  uses  was  intended  to  be  sold  by  Act  of 
Parliament ;  and,  when  the  bill  was  read  in  Parliament,  it 
was  declared  that  the  land  was  thus  chargeable,  and  an  offer 
made  otherwise  to  assure  the  use.  The  bill  not  passing, 
the  land  was  afterwards  sold  to  a  member  who  took  part  in 
the  debate.     Held,  not  legal  notice.^ 

14.  Questions  of  notice  often  occur  in  reference  to  the 
rights  of  landlord  and  tenant,  and  the  purchase  of  leasehold 
interests. 

15.  General  notice  to  a  purchaser,  that  there  are  leases,  is 
notice  of  all  their  contents.  Thus  a  purchaser,  being  told 
part  of  the  estate  was  in  possession  of  a  tenant,  was  held 
bound  by  the  lease.*  So  the  possession  of  a  tenant,  even  of 
part  of  the  estate,  is  notice  to  a  purchaser  of  the  actual 
interest  he  may  have,  either  as  tenant,  or  further,  by  an 
agreement  to  purchase.'' 

16.  Bill  for  specific  performance.  A  tenant,  being  about  to 
marry,  requested  his  landlord  to  substitute  as  cestui  que  vie 

1  2  Suo-d.  537-8.  ^  2  Sugd.  538. 

-  Wildgoose    v.   Weyland,    Goulds.  *  Taylor  v.  Stibbert,  2  Ves.  437. 

147,  PI.  67;  Cornwallis's    case,  Toth.  ^  Daniels  v.  Davison,   16  Ves.  249; 

254.                             •  Powell  V.  Dillon,  2  Ball  &  B.  416. 

(«)  It  is  lield,  that  a  notice  in  the  name  of  nobody  is  insufficient.     Rogers 

V.  Hoskins,  14  Geo.  166.     So  it  is  said,  flying  reports  are  many  times  fables, 

and  not  truth  ;  and,  if  admitted  for  sufficient  notice,  the  inheritance  of  every 

man  might  easily  be  slandered.    Wildgoose  r.  Weyland,  Goulds.  147,  pi.  67. 

35 


410  LAW   OF   VEND0R8    AND    PURCHASERS,  [CII.  XXIII. 

• 

in  his  lease,  in  place  of  an  old  life,  the  name  of  the  plaintiflf, 
his  intended  wife  ;  which  the  landlord,  by  letter,  promised  to 
do  ;  and,  upon  the  faith  of  such  promise,  the  marriage  was 
had,  and  the  premises  settled  upon  the  wife.  The  landlord 
being  dead,  the  wife  brings  this  bill  against  the  defendant,  a 
purchaser  from  the  landlord;  who  was  deemed  under  the 
circumstances  to  have  had  notice  of  the  agreement.  Decree 
for  the  plaintiff.! 

17.  A  tenant  for  life  having  granted  leases  for  lives  under 
a  power,  and  bound  himself  upon  the  dropping  of  a  life  to 
grant  a  new  lease,  with  the  same  provision  for  renewal  on 
the  death  of  any  person  to  be  narhed  in  any  future  lease, 
and  afterwards  joined  in  a  sale ;  held,  though  the  power 
was  exceeded,  yet,  if  a  life  drops  in  the  life  of  the  lessor,  the 
purchaser,  having  notice,  must  specifically  perform,  by  grant- 
ing a  new  lease  with  the  same  provision.^ 

18.  The  lord  of  a  West-country  manor  (his  tenants  re- 
fusing to  renew)  makes  a  lease  of  the  premises  to  his 
daughter  for  ninety-nine  years,  and  afterwards  sells  the 
manor  to  one  who  has  notice  of  the  lease,  but  has  security 
that  the  daughter,  when  at  age,  should  surrender.  The 
daughter  was  decreed  to  have  the  ben^t  of  the  lease.^ 

19.  A.  made  an  equitable  mortgage  to  B.,  and  afterwards 
agreed  to  lease  to  C,  who  had  notice  of  the  prior  charge. 
A.  became  bankrupt  before  the  lease  was  executed,  and  on 
the  petition  of  B.  an  order  in  bankruptcy  was  made,  under 
which  the  premises  were  sold  to  B.,  and  he  retained  the 
amount  of  his  mortgage  out  of  the  purchase-money.  Held, 
on  a  bill  filed  by  C.  for  specific  performance  of  the  agreement, 
that  B.,  having  become  the  purchaser,  and  thereby  united 
his  equitable  mortgage  with  the  equity  of  redemption,  was 
bound  to  perform  the  agreement.^ 

20.  An  agent  may  take  a  lease  from  his  principal,  if  pre- 
pared to  prove  that  full  information  has  been  imparted  to 

1  Crofton  V.  Ormsby,  2  Scho.  &  Lef.        ^  Jennings  v.  Selleck,  1  Vern.  467. 
583.  *  Smith  v.  Phillips,  1  Kee.  694. 

2  Taylor  u.  Stibbert,  2-Ves.  437. 


en.  xxni.]  NOTICE.  411 

the  latter,  and  that  the  contract  has  been  entered  into  with 
perfect  good  faith.  And  the  same  principle  applies  to  one 
who  takes  an  assignment  of  a  lease  from  the  agent  of  the 
lessor,  with  notice  of  the  agency.  If  the  lease  cannot  be 
upheld  by  the  agent,  neither  can  it  be  by  the  purchaser.' 

21.  Demise  by  a  copyholder  for  one  year,  and,  at  the  end 
of  that  tetm,  from  year  to  year,  for  the  term  of  thirteen  years 
more,  if  the  lord  will  give  license  ;  and  so  as  there  shall  be 
po  forfeiture,  with  the  usual  covenants  in  a  farm  lease.  The 
license  not  being  granted,  held,  it  was  a  condition  precedent, 
and  there  was  no  lease  at  law  further  than  from  year  to 
year ;  also,  that  no  equity  arose  from  the  circumstance,  that 
the  lord  purchased  his  tenant's  interest  with  notice  of  the 
demise,  and  an  express  exception  of  all  subsisting  leases,  or 
agreements  for  leases.^ 

22.  A  purchase  pendetite  lite,  though  without  actual  notice, 
and  for  valuable  consideration,  shall  be  set  aside.  ^^  Pendente 
lite  nil  innovetur."  Though  this  rule  of  equity  Is  said  to 
be  hard,  yet  it  is  in  imitation  of  the  common  law,  where  in 
a  real  action,  if  the  defendant  alienes  pending  the  writ,  the 
judgment  will  overreach  the  alienation.  Thus  acts  of  the 
Court,  as  the  commitment  of  a  wardship,  and  in  a  cause 
depending,  are  to  be  taken  notice  of  by  every  one  at  his 
peril.^  So,  an  heir  at  law  being  as  much  at  liberty  to  invali- 
date the  will,  as  the  devisees  to  establish  it ;  a  suit  for  that 
purpose  is  to  all  intents  a  lis  pendens.'^  So,  in  case  of  a 
devise  of  lands  charged  with  payment  of  debts ;  if  the  de- 
visee sell,  pending  a  suit  by  creditors  for  sale  and  payment 
of  debts,  such  alienation  is  void.^  (a) 

1  Molony  v.  Kernan,  2  Drn.  &  War.        ^  Herbert's  case,  3  P.  Wms   117. 
.31 .  *  Garth  v.  Ward.  2  Atk.  174  ;  3  Bar- 

-  Lufkin  V.  Nunn,  11  Ves.  170.     See  nard,  Rep.  Clia.  450. 
Doe  V.  Lufkin,  4  E.  221.  ^  Walker  v.  Sraalwood,  Ambl.  676. 

% 
(a)  Whether  a  subpoena  served,  and  a  bill  filed,  is  a  lis  pendens  against 
all  persons,  qu.     The  former  alone  is  not.    Anon.  1  Vern.  318.    But,  where 
a  Register  Act  directed,  that  no  judgment  should  affect  lands,  but  from  the 


412  LAW    OP   VENDORS    AlfD   PUnCHASERS.         [CH.  XXHI- 

23.  It  has  been  held,  that  a  decree  is  not  implied  notice  to 
a  purchaser,  after  the  cause  is  ended  ;  but  it  is  the  pendency 
of  the  suit  that  creates  the  notice.'  {a)  As  it  is  a  transaction 
in  a  sovereign  court  of  justice,  it  is  supposed  all  people  are 
attentive  to  what  passes  there.^  So,  where  the  defendant, 
having  notice  of  a  decree  to  which  he  was  no  party,  paid 
money  contrary  to  that  decree  ;  ordered,  that  he  should  pay 
the  money  over  again.^ 

24.  After  a  decree,  the  bar  to  the  right  of  reviving  th^ 
suit,  which  arises  from  delay,  depends  altogether  on  the  dis- 

^  Worsley  \k  Scarborough,   3   Atk.      ^  Ibid. 
392.  ^  Harvey  v.  Montague,  1  Vern.57,  122. 

time  of  registry  of  such  judgment,  a  purchaser  with  notice  of  an  unregis- 
tered judgment  was  still  held  to  be  bound  by  it.  Tunstall  v.  Trappes,  .3 
Sim.  301. 

(a)  In  case  of  a  real  purchase  pendente  lite,  the  plaintiff  is  to  be  held 
to  strict  proof.  And,  if  any  flaw  at  the  hearing  be  on  the  plaintiff's  side, 
the  Court  will  not  let  him  amend  ;  but,  if  the  i:)UYchsLse  pendente  lite  be  fraud- 
ulent, and  to  elude  the  justice  of  the  Court,  it  ought  to  be  highly  discoun- 
tenanced.    Sorrel  v.  Carpenter,  2  P.  Wms.  482. 

A  conveyance  made  j^cndente  lite  is  not  wholly  void.  The  rule  merely 
means  tHat  the  conveyance  does  not  vary  the  rights  of  the  parties  to  the 
suit;  that  they  are  not  bound  to  take  notice  of  the  title  acquired  under  it; 
but,  with  regard  to  them,  the  title  is  to  be  taken  as  if  it  never  existed.  2 
Story  Eq.  §  908  ;  Hopkins  v.  M'Laren,  4  Cow.  678. 

So  it  is  held,  that  the  effect  of  the  maxim,  ^'■pendente  lite  nihil  innovetur" 
is  limited  to  the  rights  and  parties  in  that  suit.  It  does  not  absolutely  annul 
a  conveyance  j'jeHf/e /lie  lite.  Therefore  a  plea  in  bar  to  a  bill  by  a  purchaser 
from  the  defendant,  with  actual  notice,  was  overruled.  Metcalfe  v.  Pulver- 
toft,  2  Ves.  &  Beam.  200. 

"  The  reason  of  the  rule  is,  that  if  a  transfer  of  interest  pending  a  suit, 
were  to  be  allowed  to  affect  the  proceedings,  there  would  be  no  end  to  liti- 
gation ;  for  as  soon  as  a  new  party  was  brought  in,  he  might  transfer  to 
another,  and  render  it  necessary  to  bring  that  other  before  the  Court ;  so 
that  a  suit  might  be  interminable.  But  this  reason  has  no  application  to  a 
third  person,  whose  interest  subsisted  before  the  suit  was  commenced,  and 
who  might  have  been  made  an  original  party."  Per  Kent,  Ch.,  Murray  v. 
Lylburn,  2  Johns.  Ch.  441. 

The  doctrine  is  said  to  rest,  not  upon  the  presumption  of  notice,  but  upon 
public  policy.     Newman  v.  Chapman,  2  Rand.  93. 


CH.  XXIII.]  NOTICE.  413 

cretion  of  the  Court.  A  bill  of  revivor  may  be  filed,  at  any 
time  within  twenty  years  after  decree  for  an  account,  unless 
there  has  been  such  a  variation  of  the  rights  of  parties,  as 
may  work  positive  injury  and  injustice  to  other  persons. 
Parties  claiming  under  a  marriage  settlement,  subsequent  to 
such  decree,  are  affected  with  notice,  as  purchasers  pendente 
lite,  a  decree  for  an  account  being  only  a  continuance  of 
the  litigation.^ 

25.  A  writ  of  restitution  will  not  be  granted,  to  put  into 
possession  one  not  a  party  to  the  cause,  who  had  been  turned 
out  by  an  injunction,  though  he  had  a  legal  title  ;  he  having 
obtained  possession  under  a  grant  from  the  defendant  pend- 
ing the  suit .2 

26.  A  devisee  obtains  a  decree  to  hold  and  enjoy  against 
the  heir,  who  it  was  supposed  had  suppressed  the  will. 
Pending  this  suit,  a  third  person  gets  an  assignriient  of  a 
mortgage  made  by  the  testator,  and  then  purchases  the 
equity  of  redemption  of  the  heir,  with  notice  of  the  will. 
The  Court  would  not  admit  the  purchaser  to  dispute  the 
decree,  nor  to  try  at  law,  whether  the  will  was  not  cancelled 
by  the  testator.^ 

27.  A  purchaser  pendente  lite,  on  filing  a  supplemental 
bill,  is  liable  to  all  the  costs  from  the  beginning  to  the  end 
of  the  suit.^ 

28.  In  a  creditor's  suit,  the  debts  and  costs  were  paid  by 
the  sale  of  one  of  two  devised  estates,  and  the  Court  directed 
the  master  to  settle  the  proportion  which  was  to  be  borne  by 
the  other.  The  devisee  of  the  former  was  entitled  for  life 
only ;  and,  he  being  an  ignorant  person  and  a  day  laborer, 
no  proceedings  were  had  under  this  direction  for  twenty-six 
years,  at  the  end  of  which  time  the  other  estate  was  sold. 
The  year  following  the  tenant  for  life  died,  and  his  son,  the 
remainder-man,  filed  a  bill,  to  charge  the  purchaser  of  the 

1  Higgins  V.  Shaw,  2  Dm.  &  War.        ^  Finch  v.  Newnham,  2  Vern.  216. 
356.  *  Anon.  1  Atk.  89. 

2  Gaskell  v.  Durdin,  2  Ball  &  Beat. 
167. 

35* 


414  LAW    OF   VET^DORS   AND    PUECnASERS.         [CTT.  XXIII. 

other  estate,  with  the  proportion  which  it  ought  to  have  con- 
tributed towards  the  debts  and  costs.  Held,  there  was  no 
such  lis  pendens  at  tlie  time  of  purchase,  as  amounted  to 
equitable  notice  of  the  charge.^ 

29.  A  joint-stock  company,  established  by  Act  of  Parlia- 
ment, vesting  in  them  all  property  then  belonging  to  them, 
and  authorizing  them  to  bring  actions  in  the  name  of  their 
treasurer  for  the  time  being,  having  purchased  an  estate, 
pending  a  suit  against  the  vendors,  to  compel  the  specific 
performance  of  an  agreement  to  grant  a  lease  of  part ;  on  a 
bill  by  the  vendee  against  the  treasurer  and  directors,  the 
plaintiffs  were  declared  entitled  to  a  lease,  and  the  treasurer 
was  enjoined  from  disturbing  their  possession,  though  the 
rest  of  the  proprietors,  being  very  numerous,  were  not  parties ; 
but  no  decree  could  be  made  for  the  execution  of  a  lease.^ 

30.  A 'decree  was  made  against  A.  B.,  setting  aside,  as 
fraudulent,  a  purchase  by  an  agent  from  his  principal,  and  a 
reconveyance,  and  the  usual  accounts  of  rents  and  purchase- 
money,  were  directed,  in  which  an  allowance  was  to  be 
made  for  substantial  repairs  and  lasting  improvements.  A. 
B.  sold  and  conveyed  part  of  the  property,  pendente  Mte,  and 
died  before  the  accounts  were  completed.  A  supplemental 
bill  was  filed  against  the  purchasers,  and  the  heir  and  per- 
sonal representatives  of  A.  B. ;  charging  that  the  purchasers, 
in  case  of  eviction,  claimed  compensation  out  of  the  estate 
of  A.  B.,  the  conveyances,  pendente  lite,  being  set  aside. 
Held,  the  purchasers  were  entitled  in  this  suit,  as  against 
their  co-defendants,  the  personal  representatives  of  A.  B.,  to 
an  order  for  the  repayment  of  their  purchase-money  ;  and,  as 
against  the  plaintiff,  to  an  allowance  for  substantial  repairs 
and  lasting  improvements,  but  to  no  greater  relief.  Held, 
also,  that  the  heir  and  personal  representatives  were  proper 
parties.^ 

31.  The  rule  in  question  has  been  held  inapplicable,  where 
a  party  has  articled  to  purchase  the  estate,  taken  possession, 

1  Kinsman  v.  Kinsman,   1   Kuss.  &        ^  Meux  u.  Maltby,  2  Swanst.  181. 
Myl.  617.  3  Trevelyan  v.  White,  1  Beav.  588. 


CH.  XXin.]  NOTICE.  415 

and  made  improvements,  before  the  commencement  of  a 
suit  against  the  vendor,  although  the  price  be  paid  and  the 
deed  executed  pending  such  suit ;  this  being  a  mere  fulfil- 
ment of  a  prior  contract.'  So  one  holding  a  deed  at  the 
time  of  suit  commenced  may  effectually  record  it  after- 
wards.^ (a) 

1  Parks  V.  Jackson,  11  Wend.  442;         '^  Irvin  v.  Smith,  17  Ohio,  226. 
ace.  Trimble  v.  Boothby,  14  Ohio,  109. 


(a)  With  regard  to  the  allegations  required  in  case  of  notice  to  a  pur- 
chaser ;  a  defendant,  j^leading  a  purchase  for  valuable  consideration  -without 
notice,  must  aver,  not  that  he,  but  that  the  vendor,  was  seised  as  owner  or 
pretended  owner,  and  was  in  possession ;  which  would  be  satisfied  by  the 
possession  of  his  tenant.  Daniels  v.  Davison,  16  Ves.  249  ;  Wallwyn  v.  Lee, 
9  Ves.  24.  Where  the  bill  charges  particular  and  special  instances  of  notice 
of  the  plaintiff's  title  on  the  defendant,  his  denial  of  notice  generally  is  not 
sufficient.    Radford  v.  Wilgon,  3  Atk.  315. 


416  LAW    OF   VENDORS   AND   PURCHASERS.  [CK.  XXIV. 


CHAPTER  XXIV. 

REMEDIES    OF    VENDORS    AND    PURCHASERS. — LAW   AND   EQUITY. 

GENERAL    JURISDICTION     OP    COURTS     OF     EQUITY  ;     COMPENSA- 
TION;  bescinding;  lien,  etc. 

1.  Having  completed  our  view  of  the  rights  and  liabilities 
of  the  respective  parties  to  contracts  for  the  sale  and  pur- 
chase of  real  estate,  we  proceed  to  the  remaining  topic,  of 
the  remedies  by  which  those  rights  may  be  asserted,  and 
those  liabilities  enforced.  It  being  a  universal  proposition, 
that,  wherever  there  is  a  legal  right,"  there  is  also  a  legal 
remedy ;  much  that  falls  with  strict  propriety  under  the 
present  division  has  been  incidentally  stated  or  alluded  to 
in  the  preceding  chapters.  But  our  plan  requires,  that  this 
whole  branch  of  the  general  subject  should  now  be  fully 
illustrated. 

2.  From  the  whole  course  of  this  work,  it  may  have  been 
inferred,  that  the  sale  of  real  property  is  a  prolific  subject  of 
questions  and  cases  in  Courts  of  Equity; {a)  very  many  of 
the  cases  heretofore  cited  having  been  settled  in  those  Courts. 

(a)  A  plaintiff,'  suing  at  law  and  in  equity  at  the  same  time,  and  for  the 
same  matter,  will  be  compelled  to  elect  in  which  Court  he  will  proceed. 
The  reason  and  object  of  this  rule  is,  to  relieve  a  defendant  from  the 
"  double  vexation  "  of  defending  himself  in  two  Courts  against  the  same 
demand,  and  to  avoid  the  clashing  of  jurisdiction,  which  would  result  from 
a  jury  finding  a  verdict  one  way,  and  the  chancellor  deciding  another. 
Bradford  v.  Williams,  2  Md.  Ch.  1. 

A  Court  of  Equity,  in  settling  the  rights  of  parties,  will  not  look  beyond 
the  circumstances  of  the  transaction  in  respect  to  which  relief  is  asked  by 
one  party,  and  take  into  consideration  other  and  different  transactions,  set 
up  by  the  other  party,  as  presenting  equities  on  his  side.  Tripp  v.  Cook,  26 
Wend.  143. 


eft.  XXIV.]  REMEDIES,   ETC. — EQUITY.  417 

And  the  statement  may  be  safely  hazarded,  that  no  single 
subject  in  the  law  gives  more  frequent  occasion  for  the  exer- 
cise of  Chancery  jurisdiction,  in  the  various  forms  of  injunc- 
tion^ rescission,  compensation,  and  more  especially  specific 
performance,  than  executory  contracts  relating  to  real  prop- 
erty. Thus  it  is  held,  that  Chancery  has  unquestionable 
jurisdiction  to  decree  specific  performance  of  a  purchase  of 
real  estate,  and  compel  the  vendee  to  pay  the  purchase- 
money,  although  the  complainant  has  a  remedy  at  law.^ 
Such  subjects  are  said  to  be  within  the  settled  and  common 
jurisdiction  of  the  Court,  and,  if  the  jurisdiction  attaches, 
the  Court  will  go  on  to  do  complete  justice  ;  although  in  its 
progress  it  may  decree  on  a  matter  which  was  cognizable  at 
law.2  Thus,  where  either  party  has  performed  a  valuable 
part  of  his  agreement,  and  is  in  no  default  for  performance 
of  the  residue,  he  is  entitled  in  equity  to  a  specific  execution 
of  the  other  part  of  the  contract ;  more  especially  where  it 
is  impossible  to  place  him  in  statu  quo?  And  it  is,  in  gen- 
eral, no  objection  that  the  vendor's  remedy  is  gone  at  law, 
by  reason  of  a  mortgage  on  the  estate,  &c.,  so  that  he  could 
convey  a  good  title  at  the  day  fixed  upon  by  the  contract.* 

3.  But,  on  the  other  hand,  equity  will  not  enforce  a  pur- 
chase, where  the  vendor  cannot  recover  at  law,  unless  he 
shows  a  sufficient  excuse  for  his  failure,  or  that  his  forfeiture 
at  law  had  been  waived  by  the  vendee.^  So,  when  as- 
sumpsit will  not  lie  on  a  breach  of  promise,  equity  will  not 
decree  specifically.^  {a) 

1  Brown  v.  Haff,  5  Paige,  235.  *  Seymour  v.  Delancey,  3  Cow.  445. 

2  Cathcart  v.  Robinson,  5  Pet.  264,         ^  Tcvis  y.  Richardson,'?  Mon.  656. 
278.  "  Hiclinian  v.  Grimes,  1  A.  K.  Marsh, 

3  Hays  V.  Hall,  4  Port.  Eq.  374.  87  ;  Smith  v.  Carney,  1  Litt.  295. 

(a)  The  respective  powers  of,  and  remedies  in,  law  and  equity,  in  ease  of 
executed  conveyances,  with  the  covenants  of  title  usually  contained  therein, 
have  been  thus  stated. 

Chancery  does  not  interfere,  by  decreeing  specific  or  further  performance, 
•with  executed  agreements.  Thus  the  plaintiffs,  supposing  they  were  seized, 
sold  and  conveyed  lands,  with  covenants  of  seizin  and  warranty,  to  which 


418  LAW   OF   VENDORS   AND   PURCnASERS.         [CII.  XXIV. 

4.  The  doctrine  of  compensation  in  Courts  of  Ecjuity  has 
ahready  been  referred  to  under  sevei'al  titles.     (See  Chapters 


they  had  no  title.  Six  years  afterwards,  on  being  sued  by  the  prantee,  the 
defendant,  on  the  covenant  of  seizin,  they  purchased  tlic  lands,  and  tendered 
a  new  conveyance,  but  he  refused  it.  Held,  that  the  Court  had  no  power  to 
compel  him  to  receive  the  deed,  or  to  interfere  with  his  action  on  the  cov- 
enants.    Tucker  v.  Clarke,  2  Sandf.  Ch.  96. 

When  a  purchaser  is  evicted  by  a  title  covered  by  his  covenants  of  war- 
ranty, this  eviction  cannot  be  called  a  failure  of  consideration,  nor  is  it 
available  as  a  defence  at  law,  to  an  action  for  the  price ;  because  a  Court  of 
Law  cannot  do  complete  jtistice  between  the  parties,  by  placing  them  in 
statu  quo.  So,  where  the  sale  has  been  executed  by  acceptance  of  a  con- 
veyance, fraud  is  no  defence  to  an  action  at  law  for  the  price.  But,  when 
a  purchaser  with  warranty  is  evicted  by  a  title  to  which  his  covenants  ex- 
tend, and  the  vendor  is  insolvent,  equity  will  restrain  him  from  recovering 
the  purchase-money,  to  the  extent  for  which  he  is  liable  on  his  covenants. 
So  fraud  committed  by  the  vendor  by  concealment  of  an  incumbrance 
created  by  himself,  whereby  the  purchaser  is  afterwards  evicted,  is  relieva- 
ble  in  equity,  by  restraining  the  collection  of  the  purchase-money  to  the 
extent  of  the  injury,  or  by  an  entire  rescission  of  the  contract,  although  the 
incumbrance  is  of  record,  and  the  conveyance  with  warranty  against  all 
incumbrances.  In  all  cases  of  purchase,  there  is  a  trust  and  confidence 
reposed  by  the  purchaser  in  the  vendor,  that  the  estate  is  not  impaired  in 
value  or  incumbered  by  any  act  done  by  him  ;  and,  by  offering  to  sell,  he 
virtually  represents  it  as  not  incumbered  by  himself,  or,  if  it  is,  that  he  will 
free  it  before  the  sale  is  executed.  And  the  cases  in  which  mere  conceal- 
ment of  an  incumbrance  has  been  held  no  ground  to  rescind  the  contract, 
it  being  removed  before  the  hearing,  are  said  to  rest  upon  the  principle  that 
no  injury  has  resulted  to  the  purchaser.  When  an  incumbrance  has  been 
concealed,  the  purchaser  may  require  a  prompt  removal  of  it.  If  not 
effected,  he  is  entitled  to  a  rescission,  and  may  abandon  the  possession, 
unless  he  chooses  to  retain  it  as  a  trust  fund,  to  reimburse  himself  for 
money  paid.  The  effect  of  retaining  possession  until  a  decree  for  rescis- 
sion, will  be  only  to"  charge  the  purchaser  with  interest  on  the  purchase- 
money,  if  the  possession  is  of  any  value.  A  covenant  covering  the  eviction 
will  not  prevent  the  purchaser  from  rescinding  for  fraud.  Nor  the  circum- 
stance, that  the  incumbrance  could  have  been  removed  by  the  payment  of 
a  sum  greatly  less  than  that  remaining  due  for  the  purchase-money.  Cul- 
lum  V.  Branch  Bank,  4  Ala.  21. 

But  it  is  said  to  be  a  well-settled  rule  of  equity,  that  a  grantee,  to  whom 
possession  has  been  delivered  under  covenants  of  title  and  warranty,  can 


CH.  XXIV.]  REMEDIES,   ETC. — EQUITY.  419 

13,  16,  17,  18,  19.)  In  more  immediate  connection  with  the 
present  topic  of  remedies,  it  may  again  be  appropriately 
introduced. 

5.  The  rule  in  equity  is,  that  a  vendor  cannot,  with  a 
good  conscience,  coerce  the  payment  of  the  whole  pur- 
chase money,  when  there  was  fraud  in  the  sale,  in  selling 
what  did  not  belong  to  the  vendor,  and  leave  the  vendee  to 
the  uncertain  damages  of  an  action  at  law ;  but  the  vendee 
has  the  right  of  withhqlding  so  much  of  the  purchase-money 
as  will  reimburse  him  for  his  loss.^  But  Chancery  does  not 
entertain  jurisdiction  of  a  suit,  where  the  sole  object  is  to 
obtain  compensation  in  damages  for  breach  of  contractj  un- 
less the  contract  is  of  equitable  cognizance  merely ;  if  the 
defendant  seasonably  object  by  demurrer  or  answer.^  The 
jurisdiction  of  equity  for  this  purpose  is  held  to  be  merely 
incidental  or  ancillary  to  a  claim  for  specific  performance  ; 
even  in  case  of  fraud.'^  Upon  a  claim  for  damages  only,  a 
Court  of  Law  is  said  to  be  the  only  proper  forum.  So  it  is 
held,  that  equity  will  give  damages  in  lieu  of  a  specific  per- 
formance, only  where  it  has  obtained  jurisdiction  of  the 
cause  on  other  grounds.  Thus,  where  the  defendant  has 
power  to  fulfil  his  contract  when  the  bill  is  filed,  but  from 
any  cause  becomes  unable  to  do  so  during  the  pendency  of 
the  suit ;  or  where,  at  the  time  of  making  the  decree,  he  can 
perform  it  in  part  only ;  the  Court,  having  had  jurisdiction 
at  first,  or  having  the  power  to  afford  partial  relief  by  de- 
creeing  a  specific  performance   as  far  as   the   defendant's 

1  Kansora  v.  Shuler,  8  Ired.  Eq.  304.        '^  Newham  v.  May,  13  Price,  749. 
■^  Morss  i\  Elmendorf,  11  Paige,  277. 


have  no  relief  against  his  grantor  for  a  return  of  purchase-money  or  secu- 
rity on  accouiit  of  a  deficiency  or  failure  of  title.  And  if  a  grantee  in 
possession  has  taken  no  covenants,  and  the  title  fails,  he  ■will  be  without  a 
remedy  in  equity  as  well  as  at  law,  provided  the  contract  were  fair  and  no 
fraud.  But,  if  fraud  is  shown  in  making  the  purchase  or  completing  it,  and 
whether  there  be  covenants  of  title  or  not,  the  purchaser  may  come  into 
equity  for  relief,  or  to  obtain  indemnity  against  eviction,  disturbance,  or 
defect  of  title.    Denston  v.  Morris,  2  Edw.  37. 


420  LAW   OF   VENDORS   AND   PURCHASERS.         [CH.  XXIV. 

ability  extends,  can  give  the  plaintifT  compensation  by  way 
of  damages.  It  is  said,  this  is  as  far  as  the  j)rinciple  ought 
to  be  carried.^  (a)  So  where  it  would  be  dillicult  to  ascer- 
tain the  amount  of  injury  resulting  from  breach  of  contract, 
equity  will  not  itself  ascertain  the  damages,  nor  direct  an 
issue  quantum  damnificatus? 

6.  Nor  can  the  complainant  entitle  himself  to  such  com- 
pensation, merely  by  concealing  the  fact,  in  his  bill,  that  the 
defendant  is  not  able  to  perform  his  contract  specifically, 
where  such  fact  is  known  to  the  complainant  at  the  time  of 
filing  the  bill.^ 

7.  Where  the  vendor  never  had  title,  or  has  conveyed  it 
subsequently  to  the  sale,  the  vendee  having  notice  cannot 
maintain  a  bill  in  equity  for  mere  compensation  in  damages, 
but  must  resort  to  his  remedy  at  law.  But,  where  the  de- 
fendant deprives  himself  of  the  power  to  perform  his  con- 
tract specifically,  pending  a  suit  to  compel  such  performance, 
the  Court  will  retain  the  suit,  and  award  damages.* 

8.  A  contract  was  so  drawn,  as  legally  to  entitle  a  vendee 
to  a  large  quantity  of  surplus  land,  not  known  to  the  par- 
ties ;  but  the  vendee  had  omitted  to  make  his  payments,  so 
that  he  had  not  a  strict  legal  right  to  a  performance.  Upon 
a  bill  brought  by  the  vendee  for  specific  perform.ance ;  held, 

1  Wiswall  V.  MeGowD,  2  Barb.  270.  *  Morss  v.  Elmendorf,  11  Paige,  277  ; 

'^  Pratt  V.  Law,  9  Cranch,  456,  494.        Woodcock  v.  Bennett,  1  Cow.  725. 
^  Morss  V.  Elmendorf,  II  Paige, 277; 
Bradley  v.  Bosley,  1  Barb.  Eq.  125. 


(a)  Upon  a  bill  for  the  specific  performance  of  an  agreement  contained 
in  a  lease,  that,  at  the  expiration  of  the  term,  the  improvements  made  by 
the  lessee  shall  remain  the  property  of  the  lessor,  on  making  a  fair  compen- 
sation therefor,  the  Court  will  entertain  jurisdiction,  though  the  bill  be 
purely  for  compensation  and  damages,  provided  a  specific  performance  may 
be  decreed,  and  the  complainant  can  have  adequate  relief  only  in  equity. 
The  charge  for  impi'ovements  is,  in  equity,  a  lien  on  the  property.  But  the 
Court  will  not  extend  its  jurisdiction  beyond  this  claim  to  a  claim  for  alleged 
infringements  of  the  rights  of  the  lessee  during  his  term.  Berry  v.  Van- 
winkle,  1  Green,  Ch.  269. 


CH.  XXIV.]  REMEDIES,   ETC. — EQUITY.  421 

performance  should  be  decreed,  only  on  his  making  additional 
compensation,  and  after  deducting  so  much  of  the  surplus 
land  as  had  been  sold  to  another.' 

9.  A.  agreed  to  sell  an  estate  tithe-free  to  B.  Afterwards, 
C,  the  vicar  of  L.,  (in  which  parish  part  of  the  estate  was 
situate,)  filed  a  bill  for  tithes  against  the  occupiers  of  an- 
other part  of  the  estate  as  also  being  situate  in  L.  A.  agreed 
that  part  of  the  purchase-money  should  be  set  apart,  as  an 
indemnity  to  B.  against  this  claim,  which  was  accordingly 
done,  and  B.  paid  the  remainder  of  his  purchase-money,  and 
took  a  conveyance.  C.  died,  and  his  suit  was  dismissed  for 
want  of  prosecution  ;  but  the  indemnity  fund  was  not  trar#- 
ferred  to  A.  One  of  C.'s  successors  instituted  a  fresh  suit 
for  the  tithes.  Pending  these  proceedings,  it  was  discovered 
that  the  lands  were  situate  in  the  parish  of  S.,  and  titheable 
to  the  rector  of  S.,  and,  on  proof  of  those  facts,  the  latter 
suit  was  dismissed  at  ^le  hearing.  Held,  B.  was  entitled  to 
a  compensation  out  of  the  fund,  for  the  tithes  of  the  land 
situate  in  S.^ 

10.  Where  the  owner  of  land,  bound  by  a  judgment 
against  a  previous  owner,  covenants  to  give  him  a  quit- 
claim deed  of  an  undivided  share  thereof,  at  a  certain  day ; 
and  after  the  day  conveys  to  another  ;  on  a  bill  filed  by  the 
covenantee  for  specific  execution,  Chancery  ought  not  to 
decree  damages  to  the  value  of  the  land,  without  providing 
that  the  covenantee  shall  first  pay  or  secure  a  proportional 
part  of  the  judgment.  In  such  case,  the  Court  may  refer  it 
to  a  Master  to  assess  the  damages.'^ 

11.  A  purchaser  may  claim  compensation  in  equity  for 
breach  of  contract  to  make  a  good  title,  and  have  an  issue 
to  a  jury,  without  first  proceeding  at  law ;  if  the  vendor 
has  conveyed  away  his  property  in  trust,  whereby  there 
might  be  difficulty  in  obtaining  satisfaction  of  a  judgment, 
and  in  order  to  prevent  circuity  of  action;  the  vendor,  or  his 

^  Kinj^  V.  Hamilton,  4  Pet.  311.  -^  Woodcock  ;;.  Bennett,  1  Cow.  711. 

■^  Ooiiiptoii  V.  Melbouni'j,  5  Sim.  353. 

36 


422  LAW    OF   VENDORS    AND    PURCHASERS.  [CH.  XXIV. 

representative,  the    trustees,  and    ccstuis   que   trusts^  being 
made  defendants.' 

12.  Bill  in  equity  for  relief.  The  defendant,  A.,  purchased 
a  farm  of  the  plaintiff,  for  worthless  stock  of  a  comj)any 
which  he  represented  to  be  worth  $6,000.  Several  false 
representations  were  made  by  A.,  and  also  by  B.,  concerned 
in  the  same  company,  to  induce  the  plaintiff  to  take  the 
stock  in  payment.  Decreed,  that  the  sale  should  be  re- 
scinded, the  stock  and  farm  each  reconveyed,  and  a  Master 
appointed,  to  report  the  amount  of  rents  and  waste,  after 
deducting  permanent  improvements,  which  should  be  al- 
lowed to  the  plaintiff.  But,  if  neither  the  land  nor  the  stock 
could  be  reconveyed,  the  Master  to  report  the  damage  done 
by  the  misrepresentations,  and  a  decree  to  be  entered  against 
the  defendants  for  the  amount.  And,  if  the  land  could  be 
reconveyed,  and  not  the  stock,  the  land  to  be  reconveyed, 
and  the  value,  if  any  thing,  of  the  shares,  at  the  time  of  the 
sale,  deducted  from  the  net  income,  and  a  decree  made  for 
the  balance.2 

13.  Bill  by  a  vendor  for  specific  performance,  with  an 
allowance  to  the  defendant  by  way  of  compensation  for  a 
part  of  the  estate  to  which  the  plaintiff  is  unable  to  make 
a  good  title.  The  defendant  having  taken  possession  under 
the  agreement,  one  of  the  terms  of  which  was  that  imme- 
diate possession  should  be  given ;  and,  in  the  course  of  sub- 
sequent disputes  as  to  the  title  to  this  part  of  the  estate, 
having  been  turned  out ;  held,  the  vendor,  in  so  turning 
him  out,  had  abandoned  his  right  to  a  specific  performance ; 
and  the  bill  was  dismissed,  without  going  into  the  question 
of  the  materiality  of  the  defective  part.^  {a) 

'  Sims  V.  Lewis,  5  Munf.  29.  ^  Knatclibull  v.  Grueber,  3  Mer.  124; 

2  Warner  v.   Daniels,   1    Woodb.  &     1  Madd.  170. 
M.  113,  114. 


(a)  The  following  rules  apply  more  particularly  to  executed  conveyances 
than  mere  executory  contracts,  but  still  tend  to  illustrate  the  subject  treated 
in  the  text. 

A  party  defrauded   in  the  purchase  or  sale  of  property  may  rescind  the 


CH.  XXIV.]  REMEDIES,    ETC. — EQUITY.  423 

14.  We  have  already  had  occasion  to  consider  the  subject 
of  the  rescinding  of  sales  and  purchases  of  real  property. 
(Chapters  13,  17,  18,  19,  and  sequ.)  It  requires  only  to  be 
further  stated,  in  the  present  connection,  as  may  indeed  have 
been  inferred  from  the  cases  already  cited,  that  Courts  of 
Equity  exercise  one  of  their  peculiar  functions,  in  wholly  or 
partially  rescinding  a  sale,  for  fraud,  mistake,  or  other  cause, 


contract,  placing  the  parties  in  statu  quo ;  or  affirm  the  contract,  so  far  as  it 
has  been  executed,  and  claim  com[)ensation.  But  equity  will  partially  re- 
scind the  contract,  only  where  no  possible  injustice  will  be  thereby  done. 
If  a  party  defrauded  is  entitled  to  any  relief,  and  it  is  necessary  for  him  to 
allege  and  establish  the  fraud  in  order  to  obtain  such  relief,  he  may  obtain 
full  relief,  without  resorting  to  law ;  although,  as  to  a  part  of  the  relief 
claimed,  he  had  a  perfect  remedy  at  law.  And  where,  by  the  fraud  of  the 
vendee,  a  part  ot  the  price  remains  unpaid,  although  the  vendor  supposed  he 
had  been  paid  in  full,  there  is  no  waiver  of  his  equitable  lien,  and  he  may 
come  into  equity  in  the  first  instance,  to  enforce  such  lien  ;  and,  as  an  inci- 
dent to  this  right,  equity  will  ascertain  the  amount.  Bradley  v.  Bosley,  1 
Barb.  Ch.  125. 

The  right  of  a  vendee  of  land,  from  a  part  of  which  he  is  evicted,  to  relief 
from  the  vendor,  by  being  discharged  from  payment  of  part  of  the  2:iurchase- 
raoney,  does  not  require  a  rescission  of  the  contract,  but  rests  on  the  ground 
of  a  partial  failure  of  consideration,  of  which  he  may  avail  himself  in  equity, 
if  not  at  law,  and  agAst  the  assignee  of  the  note  or  bond  given,  as  well  as 
the  payee.     Walker  v.  Johnson,  J.3  Ark.  522. 

When  a  vendor  sells  several  tracts  of  land,  with  general  covenants  of 
warranty,  and  afterwaVds  the  vendee  is  evicted  from  one  of  the  tracts,  by  a 
person  holding  a  paramount  title;  he  may  defeat  the  recovery  of  the  unpaid 
purchase-money,  as  against  the  vendor,  to  the  extent  of  the  value  of  this 
tract.     Ibid. 

Such  vendee  having,  after  his  eviction,  and  after  the  assignment  of  his 
obligation  for  the  purchase-money,  received  back  from  the  land-office  the 
•entrance-money  paid  by  his  vendor  for  the  land,  by  way  of  indemnifying 
himself  to  that  extent  against  the  insolvency  of  the  vendor  ;  held,  he  did 
not  thereby  waive  his  defence,  as  against  the  assignee,  of  such  partial  failure 
of  consideration.     Ibid. 

Equity  will,  in  cases  of  a  very  peculiar  and  extraordinary  character  only, 
compel  a  purchaser  to  receive  a  title,  in  lieu  of  damages  which  he  may  have 
recovered  against  the  vendor,  for  failing  to  convey.  Royster  v.  Shackle- 
ford,  5  Litt.  229. 

^^ 

>\iBLic  imm) 


424  LAW    OF    VENDORS    AND    PURCHASERS.  [ciI.  XXIV. 

which  would  render  its  enforcement  and  execution  inequit- 
table.  Thus,  a  purchaser  had  stipulated  for  a  good  title,  on 
payment  of  the  purchase-money,  but  the  title  was  in  the 
heirs  of  a  third  person,  who  were  non-residents.  The  parties 
to  a  bond,  indemnifying  the  purchaser  against  a  mortgage 
upon  the  land,  were  also  non-residents,  and  one  was  insol- 
vent, and  the  other  did  not  prove  his  ability  to  respond  in 
damages.  Held,  Chancery  would  afford  relief.'  So  the  false 
representation  of  the  vendor,  as  to  the  existence  of  a  material 
fact,  constituting  an' inducement  to  the  contract,  and  upon 
which  the  vendee  did,  and  had  a  right  to  rely,  in  concluding 
the  purchase  ;  entitles  the  latter  to  rescind  the  contract  in  a 
Court  of  Equity,  although  the  vendor  may  not  have  known 
that  such  representation  was  false.^  {Supra,  p.  325.)  But 
whether  without  first  abandoning  possession,  quwre  ?^  So, 
where  a  vendee,  who  has  paid  the  purchase-money,  and,  by 
the  terms  of  the  bond,  has  a  present  right  to  the  title,  files 
his  bill  to  rescind  the  contract,  and  for  an  account  of  the  pur- 
chase money  paid,  &c. ;  the  general  charge,  that  the  defendant 
has  no  title  to  the  land,  that  it  is  incumbered  with  the  dower 
of  the  wife  of  a  previous  owner,  and  that  it  will  be  impos- 
sible for  the  defendant  to  procure  a  title  for  many  years  to 
come,  makes  out  at  least  9.  primd  facie  cas^f  equitable  cog- 
nizance, and  is  sufficient  to  require  the  defendant  to  answer.^ 
15.  But  equity  will  not  rescind  a  contract,  where  the  ven- 
dor, although  unable  to  make  title,  is  perfectly  solvent,  and 
has  been  guilty  of  no  fraud,  on  the  ground  that  he  is  a  resi- 
dent of  another  State  ;  if  he  was  such  at  the  time  of  the  con- 
tract, and  has  so  continued  ever  since.^  So,  where  a  vendee 
retains  possession,  equity  wiU  not  rescind  the  contract,  unless 
upon  some  special  ground  ;  such  as  the  vendor's  inability  to 
make  title,  coupled  with  insolvency,  or  fraud  in  the  sale.^ 
So,  although  equity  may  rescind  a  conveyance  or  a  contract 
therefor,  which  has  been  procured  by  fraud,  when  a  proper 

'  Griggs  V.  Woodruff,  14  Ala.  9.  ^  Read  i-.  Walker.  18  Ala.  323. 

-^  Read  u.  Walker.  IS  Ala.  323.  '  Parks  v.  Brooks.  16  Ala.  529. 

Ibid.  6  ii.ij. 


CH.  XXIV.]  REMEDIES,    ETC. — EQUITY.  425 

case  for  it  is  presented ;  no  such  relief  can  be  given,  where 
no  conveyance,  or  written  or  other  legal  contract  or  bargain 
for  the  conveyance,  of  any  part  of  the  land,  by  the  defendant 
to  the  plaintiff,  is  proved  to  have  existed  at  any  time.^  (a) 
So  a  purchaser  who  discovers  that  a  fraud  has  been  prac- 

*  Woodman   v.  Freeman,  25  Maine,  531. 


(a)  In  a  suit  to  set  aside  a  conveyance  after  twenty-seven  years,  on  the 
ground  of  fraud,  consisting  in  the  lunacy  of  the  vendor,  insufficient  consid- 
eration, suppression,  and  coercion  on  the  part  of  the  purchaser,  the  plaintiff" 
failed  in  proving  any  of  the  alleged  grounds  of  fraud,  but  proved  lunacy. 
Held,  the  Court  would  not  set  aside  the  conveyance.  Price  v.  Berrington, 
7  Eng.  L.  &  Eq.  254. 

A.,  supposing  that  he  had  title  to  a  tract  of  land  of  which  B.  had  posses- 
sion, agreed  to  sell  it  to  him,  and  executed  a  conveyance,  with  full  covenants. 
It  afterwards  appeared,  that  A.  had  no  title  to  the  tract,  and  that  his  deed 
conveyed  another  tract,  to  which  A.  had  title.  Upon  discovering  the  mis- 
take, B.  offered  to  return  the  deed,  and  to  rescind  the  contract,  which  A. 
refused.  Thereupon,  B.  sued  at  law,  to  recover  the  purchase-money.  Held, 
he  could  not  recover,  and  that  equity  alone  could  afford  relief.  Homer  v. 
Purser,  20  Ala.  573. 

A  bill  for  the  rescission  of  a  sale  alleged,  that  the  vendor  sold  and  con- 
veyed to  two  of  the  complainants,  while  the  deed,  which  was  made  an 
exhibit  to  the  bill,  conveyed  to  one  of  the  complainants  only.  Held,  no 
material  variance,  as  the  defendant  could  not  have  been  taken  by  surprise. 
Lanier  v.  Hill,  25  Ala.  554. 

A  sale  is  sometimes  rescinded  by  cancelling  the  security  by  which  it  is 
effected.  But  it  is  held  that  equity  will  not  decree  cancellation  of  a  bond 
for  conveyance  for  breach  of  the  conditions,  when  the  parties  have  an 
adequate  remedy  at  law.     Shoup  v.  Cook,  1  Cart.  135. 

A.  contracted  to  sell  to  C.,  without  authority  from  B.,  the  owner.  After- 
wards, B.  made  a  quitclaim  deed  to  C,  and  gave  it  to  A.  as  an  escrow,  with 
authority  to  deliver  the  deed  to  C,  upon  performance  of  certain  conditions. 
After  this,  A.  confederated  with  C,  to  defraud  B.  out  of  his  interest ;  and 
gave  the  deed  to  C.  without  the  conditions  being  fulfilled.  Held,  equity 
would  decree  the  cancellation  of  the  deed,  and  also  that  C.  restore  possession, 
accounting  for  the  rents  and  profits  ;  but  that  C,  who  had  purchased  an 
adverse  title,  was  not  bound  to  surrender  it.  Also,  that  C.  could  not  then 
claim  under  the  deed  from  B.,  by  complying  with  the  original  contract  with 
A. ;  and  that  it  was  too  late  to  ask  specific  performance  of  the  contract,  after 
having  evaded  and  repudiated  it.  dement  v.  Evans,  15  III.  92. 
36* 


426  LAW    OF   VENDORS   AND    PURCHASERS.  [CIT.  XXIV. 

tised  upon  him,  or  that  the  other  party  has,  by  his  conduct, 
prevented  him  from  enjoying  the  fruits  of  his  purchase,  must, 
to  entitle  himself  to  relief  in  a  Court  of  Equity,  immediately 
give  notice  to  the  vendor  tiiat  he  will  no  longer  be  bound  by 
his  contract,  but  will  rescind  it.'  So,  where  a  vendee,  dis- 
covering a  defect  in  his  vendor's  title  to  part  of  the  land, 
sues  at  law  on  the  contract,  and  recovers  judgment  for,  and 
collects,  the  damages  sustained,  by  reason  of  the  defect ;  he 
thereby  elects  to  treat  the  contract  as  valid,  and  cannot 
afterwards  sustain  a  bill  in  equity  to  have  it  rescinded.^  So, 
where  a  vendee  seeks  to  rescind,  for  want  of  title  in  the 
vendor,  he  must  restore  to  the  vendor  all  he  received,  and 
place  him  back  in  his  original  situation.*^  So  the  Court  will 
not  set  aside  a  purchase  of  a  house  and  lot,  on  the  allegation 
of  an  imperfect  or  incumbered  title,  not  clearly  shown  to  be 
so,  after  a  long  possession  by  the  purchaser,  and  a  confession 
of  judgment  for  the  purchase-money.  Such  conduct  amounts 
to  a  waiver,  though  the  Court  might  give  some  relief  ulti- 
mately, if  the  title  turned  out  to  be  really  bad.  The  vendor 
having  enforced  the  judgment  for  his  pm-chase-money,  and 
bought  in  the  property  at  a  very  low  rate,  but  offering  to 
rescind  the  sale  on  payment  of  the  debt ;  the  Court  decreed 
accordingly.^ 

16.  Where  a  vendee  seeks  by  his  bill  a  rescission  of  the 
contract,  and  an  account  for  purchase-money  paid  and  im- 
provements ;  an  averment,  that,  in  the  event  of  a  rescission, 
he  will  lose  a  considerable  portion  of  the  purchase-money, 
and  of  the  amount  due  for  improvements,  if  he  is  compelled 
to  abandon  all  recourse  upon  the  vendor's  interest  in  the 
land,  and  to  trust  to  his  personal  responsibility  and  solvency, 
shows  a  sufficient  excuse  for  the  retention  of  possession.^ 

17.  It  has  been  seen,  (Chap.  1,)  to  what  extent  a  pur- 
chaser of  lands  becomes  the  owner  of,  or  gains  a  title,  to 
them,  before  any  actual  conveyance.    It  remains  to  be  stated, 

'  Alexander  v.  Utley,  7  Ired.  Eq.  242.     ■•  Roach  v.  Rutherford,  4  Desaus.  126. 
^  Pettus  V.  Smith,  4  Rich.  Eq.  197.       ^  Read  v.  Walker,  18  Ala.  323. 
■'  Brown  v.  Witter,  10  Ohio,  142. 


CH.  XXIV.]  REMEDIES,   ETC. — EQUITY.  427 

in  the  present  connection,  as  a  right  or  claim  recognized 
only  by  Courts  of  Equity,  that  such  purchaser,  by  payment 
of  the  purchase-money,  has  been  sometimes  held  to  acquire  a 
li^n  upon  the  estate,  corresponding  with  the  lien  of  a  vendor 
for  the  price,  after  an  actual  conveyance.  Under  such  cir- 
cumstances, the  purchase-money  is  said  to  have  been  paid 
punctually,  prematurely,  or  by  surprise.  The  lien  in  question 
has  been  distinctly  asserted  in  some  English  cases,  but  in 
others  doubted  or  denied,  and  can  hardly  be  regarded  as  a 
settled  rule  of  American  law.  («)  The  high  authority  of  Sir 
Thomas  Clarke,  M.  R.,  and  of  Judge  Story,  may  be  cited  in 
its  favor,  and  that  of  Mr.  Sugden  against  it.' 

18.  The  most  frequent  and  important  exercise  of  Chan- 
cery jurisdiction,  in  reference  to  the  sale  and  purchase  of  real 
property,  namely,  that  of  specific  performance,  will  be  consid- 
ered in  the  next  chapter. 

1  Burgess  v.  Wheate,  1  W.  Bl.  150  ;  You.  &  Jer.  264;  Ludlow  v.   Grayall, 

2  Story,  Eq.s.  1217,  n.  ;  Sugd.  V.  &  P.  11    Price,    58;    Small   v.   Attwood,    1 

258  ;  Payne  v.  Atterbury,  Harring.  Ch.  Y^ouage,    507  ;    Cater  v.  Pembroke,   1 

414;    Coote,  265;    Lowell  v.   Mutual,  Bro.  301  ;  Regan  y.  Walker,  2  Chandl. 

&c.   8    Cush.    132;  ^tna,  &c.  v.  Tyler,  133. 
16  Wend.  385;  Oxenham  v.  Esdaile,  3 

(a)  It  has  been  held  in  Indiana,  that  a  vendee  of  real  estate  has  a  lien 
thereon  for  the  money  paid,  if  the  vendor  refuse  to  convey,  even  as 
against  a  subsequent  purchaser  with  notice.  Shirley  v.  Shirley,  7  Blackf. 
452.  So  in  Kentucky  and  Alabama,  a  vendee,  whose  contract  is  dissolvedi 
has  a  lien  on  the  land  for  his  purchase-money  and  interest,  and  the  value  of 
the  improvements  ;  nor  should  he  be  compelled  to  surrender,  until  they  are 
paid  or  secured.  Griffith  v.  Depew,  3  Marsh.  179;  Conner  u.  Banks,  18 
Ala.  42. 


428  LAW   OF   VENDORS    AND    PURCHASERS.  [CII.  XXV. 


CHAPTER  XXV. 


SPECIFIC   PERFORMANCE. 


1.  Nature  and  liistory  of  the  remedy.  20.  And    reasonable    and    equitable — 

3.  Its    peculiar    application    to    con-  fraud,  mistake,  &c. 

tracts  relating  to  real  estate.  27.  But  not  necessarily  beneficial. 

4.  Questions  of  jurisdiction,  in  rem  28.  Public  policy. 

and  in  personam.                                         ^  30.  Consideration,  inadequate  or  cx- 

5.  Form  of  the  contract;  bond  with  cessive. 

penalty.  34.  Price  fixed  by  arbitration. 

7.  Specific   performance,  in  connec-  39.  Plaintift' must  prove  performance 

tion  with  other  modes  of  relief.  of  his  own  contract. 

12.  Denial  of  specific   performance,  44.  Partial  failure  of  title. 

and  rescinding  of  the  sale,  compared.  45.  Statute  of  Frauds — part-pcrform- 

"13.  Compensation — damages.                  |  ance.     Defences;    pleading  ;    evidence, 

14.  Contract  must  be  certain.                \  &c. 

16.  And  miitual.  ' 

1.  As  has  been  already  remarked,  the  most  common  exer- 
cise of  equity  jurisdiction,  in  reference  to  the  sale  and  pur- 
chase of  real  property,  is  in  the  form  of  specific  pei-formance ; 
whereby  one  party,  instead  of  recovering  damages  from  the 
other  for  a  breach  of  contract  to  sell  or  buy,  and  more 
especially  the  former,  enforces  the  actual  execution  of  such 
contract,  by  the  penalties  with  which  a  Court  of  Chancery 
is  armed  for  effecting  its  decrees.  This  peculiar  jurisdiction 
is  said  to  be  of  very  ancient  date,  if  not  coeval  with  the 
existence  of  Courts  of  Equity.^  It  is  also  said,  that,  before 
the  time  of  Lord  Somers,  the  practice  used  to  be,  on  bills 
for  a  specific  performance,  to  send  the  party  to  law ;  and,  if 
he  recovered  damages,  the  Court  of  Chancery  entertained 
the  suit ;  otherwise  the  bill  was  dismissed.  But  no  such 
practice  now  exists,  if  indeed  it  ever  really  prevailed.^ 

2.  It  is  said,  on  the  one  hand,  that  specific  performance 
wiU  sometimes  be  decreed  where  no  action  for  damages 
would  lie,  as  where,  through  mere  negligence,  and  without 

1  2  Story,  Eq.  s.  716.  ^  ibj^.  g   733. 


CH.  XXV.]  SPECIFIC    PERFORMANCE.  429 

unfairness,  the  plaintiff  has  failed  to  comply  with  his  own 
part  of  the  contract ;  ^  and  on  the  other,  that  it  \yill  in  some 
cases  not  be  decreed,  though  an  action  might  perhaps  lie  for 
damages,  as  where  the  vendor's  title  is  involved  in  difficijlties 
which  cannot  be  removed.^  So  it  is  said,  the  right  of  a 
vendor  to  come  into  a  Court  of  Equity  to  enforce  a  specific 
performance  is  unquestionable.  Such  subjects  are  within 
the  settled  and  common  jurisdiction  of  the  Court.  It  is 
equally  well  settled,  that,  if  the  jurisdiction  attaches,  the 
Court  will  go  on  to  do  complete  justice ;  although  in  its 
progress  it  may  decree  on  a  matter  which  was  cognizable  at 
law."" 

3.  The  peculiar  jurisdiction  of  Courts  of  Equity,  with 
reference  to  specific  performance,  over  contracts  relating  to 
real  property^  arises  from  the  fact,  that,  in  case  of  personal 
property,  no  particular  value  is  generally  attached  to  one 
article  over  others  of  the  same  kind,  and  therefore  full  com- 
pensation may  be  obtained  by  damages,  with  the  amount  ol 
which  another  similar  article  may  at  once  be  purchased  ; 
while  the  value  of  real  property  in  the  eyes  of  the  purchaser 
may  depend  upon  circumstances  of  position,  neighborhood, 
soil,  and  in  general  upon  considerations  of  taste  or  fancy, 
for  which  damages  are  no  compensation.^  It  is  said,  "  No 
subject  is  more  proper  for  the  power  of  a  Court  of  Chancery 
in  decreeing  specific  execution,  than  a  contract  for  the  sale 
of  real  estate ;  for  what  is  agreed  to  be  done  ought  in  con- 
science to  be  done.  Nor  is  the  remedy  at  law  for  damages 
complete  or  adequate  ;  for  the  thing  contracted  for  is  wanted, 
and  the  value  in  money  may  often  be  an,  unsatisfactory  com- 
pens'ation."  ^  Upon  these  considerations,  the  general  doctrine 
is  laid  down,  that,  where  a  contract  respecting  real  property 
is  in  its  nature  and  circumstances  unobjectionable,  it  is  as 
much  a  matter  of  course  for  Courts  of  Equity  to  decree  a 

'  Lennon  v.  Napper,  2   Sch.  &  Lef.  *  See  Adderley  v.  Dixon,  1  Sim.  & 

684.  St.  607. 

-  2  Story,  Eq.  ss.  748-9.  ^  Ensign  v.  Kellogg,  4  Pick.  1. 
3  Cathcart  v.  Robinson,  5  Pet.  264. 


430  LAW    OF   VENDORS   AND    PURCHASERS.  [CH.  XXV. 

specific  performance  of  it,  as  it  is  for  a  Court  of  Law  to  give 
damages  for  the  breach  of  it.^ 

4.  With  reference  to  the  jurisdiction  of  the  Court,  as  de- 
termined by  the  location  of  the  property  on  the  one  hand, 
or  the  residence  of  the  defendant  on  the  other,  it  is  well 
settled  in  Great  Britain,  that  a  bill  for  specific  performance 
may  be  maintained,  though  the  land  is  situated  in  a  foreign 
country,  if  the  parties  reside  within  the  territorial  jurisdiction 
of  the  Court.  '■'■jEquitas  agit  in  personam.''^  Thus  specific 
performance  was  decreed  of  a  contract,  entered  into  by  the 
proprietors,  respecting  the  boundaries  of  the  colonies  of 
Pennsylvania  and  Maryland.  So  of  an  agreement  respect- 
ing the  Isle  of  Man,  and  lands  in  Ireland.^  So,  it  seems, 
a  contract  made  in  South  Carolina,  for  land  lying  in  another 
State,  may  be  enforced  in  personam,  by  one  party  against 
the  other.^  And,  on  the  other  hand,  it  has  been  held,  that 
specific  performance  of  a  contract  to  convey  land  in  Massa- 
chusetts may  be  decreed  against  an  inhabitant  of  Connecti- 
cut, who  has  been  served  with  personal  notice  in  Massachu- 
setts.4 

5.  The  precise  form,  in  which  a  contract  for  the  sale  of 
real  property  is  expressed,  is  immaterial  with  reference  to 
the  right  of  specific  performance.  Thus,  though  the  con- 
tract appears  only  in  the  condition  of  a  bond  with  penalty, 
it  will  be  enforced  as  an  agreement,  and  the  party  cannot 
escape  fi'om  specific  performance  by  paying  the  penalty.® 

6.  More  especially  will  this  rule  be  adopted,  where  the 
bond  is  accompanied  by  another,  absolute  agreement.  Thus 
the  defendant  agreed  in  writing  to  convey  land  to  the  plain- 
tiff on  certain  terms,  and  at  the  same  time,  by  another 
writing,  to  forfeit  a  certain  sum  if  he  should  fail  so  to  con- 
vey. Held,  the  plaintiff  was  entitled  to  specific  performance 
of  the  former  agreement,  upon    complying  with   his    own 

1  2  Story,  Eq.  s.  751.  3  Ramsay  v.   Brailsford,    2    Desau«. 

'^  Perm    v.  Baltimore,    1    Ves.   444  ;     582. 
Atholy.  Derby,  1  Ch.  Cas.221  ;  Archer         *  Dooley  v.  Watson,  1  Gray,  414. 
V.  Preston,  1  Vern.  77.  ^  Logan  v.   Wienholt,    7    Bligh.    1  ; 

Ensign  v.  Kellogg,  4  Pick.  1. 


CH.  XXV.]  SPECIFIC    PERFORMANCE.  431 

contract.  Shaw,  C.  J.,  says :  "  The  promise  of  the  defend- 
ant to  pay  the  plaintiff  one  hundred  dollars,  if  the  defendant 
should  fail  to  perform  his  agreement  to  convey  the  land,  was 
merely  a  security  for  the  performance  of  that  agreement. 
Courts  of  Equity  have  long  since  overruled  the  doctrine 
that  a  bond  for  the  payment  of  money,  conditioned  to  be 
void  on  the  conveyance  of  land,  is  to  be  treated  as  a  mere 
agreement  to  pay  money.  When  the  penalty  appears  to  be 
intended  merely  as  a  security  for  the  performance  of  the 
agreement,  the  principal  object  of  the  parties  will  be  carried 
out.  The  agreement  between  the  parties  in  this  case  is 
clearly  an  alternative  agreement.  It  was  an  absolute  agree- 
ment to  convey  real  estate,  and  may  be  treated  in  all  respects 
as  such,  either  in  a  Court  of  Law  or  Equity,  without  regard 
to  the  note."  ^ 

7.  The  question  of  specific  performance  often  arises  in 
connection  with  other  grounds  for  equitable  interference. 
/This  relief  is  sometimes  granted,  instead  of  other  equitable 
relief  which  is  directly  sought ;  and,  on  the  other  hand,  a 
prayer  for  oth'er  relief  sometimes  results  in  a  decree  for 
specific  performance,  with  such  terms  and  limitations  as  the 
circumstances  of  the  case  may  require. 

8.  A  bill  in  equity,  praying  specific  performance  of  an 
agreement  to  convey  land,  also  alleged  that  the  defendant 
purchased  the  land  as  his  agent  and  with  his  money,  and 
therefore  held  it  in  trust  for  him.  Held,  the  bill  was  not  in- 
consistent in  its  allegations,  and  might  be  supported  as  a  bill 
for  specific  performance  ;  it  being  a  rule  of  equity  pleading, 
that  a  bill  may  be  framed  in  alternative  form,  and  facts  of  a 
different  nature  alleged  to  support  it,  if  in  either  alternative 
the  title  to  relief  will  be  the  same.^ 

9.  The  plaintiff,  being  defendant  in  an  execution,  per- 
mitted the  defendant,  the  plaintiff  in  the  execution,  to  buy 
certain  lands  of  his  at  sheriff's  sale,  upon  which  the  defend- 
ant agreed  by  parol,  that  the  plaintiff  might  sell  the  lands,  and 

1  Dooley  17.  Watson,  1  Griiy,  414,416.         -^  Gerrish  v.  Towne,  3  Gray,  82. 


432  LAW  OF  VENDORS  AND  PURCHASERS.     [cu.   XXV. 

reap  any  profit  on  the  sale,  after  paying  the  defendant  the 
sum  of  ^375,  dne  him  l)y  the  plaintiff;  upon  which  the  plain- 
tiff sold  the  land  by  parol  to  A.  for  ^650,  of  which  A.  was  to 
pay  the  defendant  $375,  and  the  residue  to  the  plaintiff.  In 
pursuance  of  this  agreement,  A.  paid  the  defendant  the 
$375,  but  failed  to  pay  the  plaintiff  the  residue,  and  delivered 
him  up  the  land  in  consequence  thereof;  upon  which  the 
plaintiff  filed  his  bill  against  the  defendant  for  a  specific  per- 
formance of  his  agreement  to  make  title  to  the  land,  or  else 
pay  the  money  received  from  A.  to  him.  Held,  he  was  not 
entitled  to  specific  performance,  because  the  contract  was 
parol ;  nor  to  recover  back  the  money,  which  could  be  recov- 
ered only  by  A.,  if  by  any  one,  the  contract  being  held 
invalid.^ 

10.  A.  sold  land  to  B.  for  $2,000,  to  be  paid  shortly,  in 
order  to  release  the  land  from  certain  mortgages.  B.  paid  a 
part  of  the  purchase-money,  and  then  brought  a  bill  in 
equity,  alleging  that  his  vendor  was  insolvent,  was  trying  to» 
sell  the  land  to  other  persons,  and  was  committing  waste. 
He  obtained  a  decree,  enjoining  A.  frojn  selling  and  from 
committing  waste,  and  afterwards,  having  tendered  good 
notes  to  the  full  amount  of  the  purchase-money,  and  offering 
to  perform  his  part  of  the  contract,  he  brought  an  amended 
bill  to  compel  a  specific  performance.  It  appeared  that  the 
mortgagees,  to  whom  B.  had  tendered  good  notes  to  the 
amount  of  their  lien,  had  refused  to  accept  them,  and  that 
the  land  was  sold  under  a  decree  of  foreclosure,  and  bought 
in  by  B.,  who  paid  cash  for  it,  to  this  amount.  Held,  that  B. 
had  a  right  to  extinguish  the  lien  in  that  way,  and  was 
entitled  to  a  decree  for  specific  performance.^ 

11.  Land  was  sold,  to  be  paid  for  in  instalments,  a  deed 
to  be  given  on  payment  of  the  last  instalment.  The  ven- 
dees entered  and  enjoyed  possession,  the  last  instalment 
was  paid  to  the  administrator  of  the  vendor,  and  the  ven- 
dees brought  an,  action  at  law  to   recover  back   the  pur- 

1  Beaman  v.  Buck,  9  Sm.  &  M.  210.  ^  Berry  v.  Walker,  9  B.  Mon.  404. 


CH.   XXV.]  SPECIFIC    PERFORMANCE.  433 

chase  money,  for  a  breach  of  the  covenant  to  convey.  Held, 
on  a  bill  in  equity  by  the  heirs  of  the  vendor,  to  enjoin  the 
judgment  at  law,  and  to  compel  specific  performance,  that, 
as  there  was  no  default  in  the  vendor  during  his  life,  and 
the  heirs  were  infants  at  the  time  of  the  judgment,  and 
unable  to  convey,  and  as  the  vendees  had  not  been  injured 
by  the  want  of  a  conveyance,  having  been  in  possession  of 
the  land  sold;  the  judgment  at  law  should  be  enjoined,  and 
the  heirs,  on  completing  their  title,  should  convey  the  land 
to  the  vendees.' 

12.  Where  one  party  seeks  specific  performance  of  a  con- 
tract, the  other  may  resist  it  upon  the  same  grounds,  on 
which,  as  has  been  seen,  (Chap.  24,)  equity  often  interferes, 
affirmatively,  to  cancel  or  rescind  such  contract.  But  the 
general  rule  upon  this  subject  is,  that  Chancery  requires 
stronger  reasons  for  setting  aside  an  agreement,  or  disturb- 
ing it  after  execution,  or  delivering  it  up  to  be  cancelled, 
than  for  denying  specific  performance.^  (See  p.  436.)  So 
equity  will  exercise  its  discretion,  by  dismissing  bills  for 
specific  performance,  wAh  costs,  although  under  the  same 
circumstances  it  would  not  cancel  the  agreement  on  a  bill 
filed  for  that  purpose.'^ 

13.  We  have  already  (Chap.  24)  had  occasion  to  consider 
the  subject  of  compensation,  as  administered  in  Courts  of 
Equity,  a  remedy  commonly  applied  to  cases  of  part  per- 
formance, or  a  partial  failure  in  title  or  value  of  the  property 
in  question.  It  may  be  added,  in  the  present  connection, 
that,  although  a  vendor  cannot  insist  upon  the  vendee's 
accepting  a  part-performance  of  the  contract,  yet  the  vendee 
may  insist  upon  a  specific  execution  in  part,  and  damages 
for  the  residue,  where  the  vendor  is  unable  to  perform  in 
toto.  (See  p.  246.)  And  the  Chancellor  will  direct  an  issue 
of  quantum  damnificatus.^  So  a  complainant  may  resort  to  a 
Court  of  Chancery  for  a  specific  conveyance  of  land,  or,  if 

1  Nesbit  0.  Moore,  9  B.  Mon.  508.  Mortlork  v.  Duller,  10  Ves.  292  ;  Black- 

'■^  Seymour  y.  Delancey,  3  Cow.  445.  wilder  y.  Loveless.  21  Ala.  .371. 

*  Davis   V.    Symonds,   1    Cox,  402;  *  Jones  y.  Shackleford,  2  Bibb,  411. 

37 


434  LAW  OF  VENDORS  AND  PURCHASERS.     [CH.  XXV. 

the  vendor  cannot  convey,  then  for  damages ;  and,  if  the 
specific  execution  cannot  be  decreed,  the  Court  will  decree 
the  damages.^  (a) 

14.  To  entitle  a  party  to  specific  perforpiance  of  an  agree- 
ment for  the  sale  of  real  estate,  the  contract  must  be  certain 
in  its  terms.*'^  Thus,  where  a  covenant  is  made  to  renew  a 
lease,  in  which  the  rent  is  not  fixed,  specific  performance  will 
not  be  decreed.^  So  execution  of  an  agreement  for  an 
estate  at  X 3,600  was  refused,  on  account  of  a  rent  left  un- 
settled, and  a  doubt  whether  it  was  five  shillings  or  one.'' 
So,  upon  the  ambiguous  terms  of  a  contract,  as  including  or 
excluding  the  timber,  the  purchaser's  bill  for  specific  per- 
formance was  dismissed;  and,  he  having  throughout  insisted 
upon  his  construction,  the  Court  would  not  compel  the  ven- 
dor to  convey,  upon  the  terms  originally  offered.'^  So  equity 
will  not  entertain  a  bill  for  specific  performance,  in  which 
the  material  terms  of  the  contract  are  not  distinctly  set  forth. 
Hence  a  bill  brought  by  a  widow,  against  her  husband's 
devisees  and  representatives,  for  specific  performance  of  an 
antenuptial  agreement,  to  settle  oi||her  "a  plantation  and 
permanent  home  for  life,"  must  distinctly  set  forth  what 
land,  where  situate,  the  number  of  acres,  fec.^ 

15.  More  especially,  equity  will  not  decree  specific  execu- 
tion of  an  uncertain  contract,  against  a  party  not  lawfully 
competent  to  execute  it.  Thus  A.,  tenant  for  life,  with 
power  to  make  leases  for  twenty-one  years  at  the  best  im- 
proved rent,  made  a  lease  to  B.,  and  thereby  covenanted 
"  for  the  term  of  his  life  to  renew  said  lease  to  B.,  his  execu- 
tors, administrators,  and  assigns,  by  giving  them  a  lease  for 
twenty-one  years  when  applied  to."  B.  surrendered  the 
lease,  under  a  clause  empowering  him  so  to  do  ;  and  after- 

1  Fisher  v.  Kay,  2  Bibb,  434.  *  Middleton  v.  Wilson,  Lofft,  801. 

2  German  v.  Machin,  6  Paige,  288.  ^  Clowes  v  Higginson,  1  Ves.  &  Bea. 
^  Kobinson  v.  Kettietas,  4  Edw.  Ch.     524. 

67.  "  Mallory  v.  Mallory,  1  Basb.  Eq.  80. 

(a)  In  such  case  it  is  proper  (where  the  vendor  is  dead)  to  make  the  heir 
and  executor  parties. 


CH.  XXV.]  SPECIFIC    PERFORMANCE.  435 

wards,  upon  a  new  agreement,  A.  indorsed  on  the  old  lease, 
"  I  promise  and  agree  to  perfect  a  fresh  lease  to  B.  at  any 
time  he  shall  demand  the  same,  at  X5  a  year  less  than  the 
within-mentioned  rent."  It  being  uncertain  whether  the 
agreement  was  for  more  than  one  term  of  twenty-one  years, 
and  an  agreement  for  a  further  lease  (even  if  clear)  being  in 
fraud  of  the  power,  a  bill  for  renewal  of  the  lease  for  a  sec- 
ond term  of  twenty-one  years  was  dismissed.'  (a) 

16.  Specific  performance  will  not  be  decreed,  unless  the 
contract  is  mutual;'^  or  where  one  party  only  is  bound  by 
the  agreement  ;  ^  or  where  there  is  not  a  quid  pro  quo^ 
(See  p.  439.)  Upon  this  ground  it  has  been  held,  that  an 
infant  cannot  sustain  a  suit  for  specific  performance.^ 

17.  More  especially  equity  will  not  enforce  a  mere  volun- 
tary agreement,  not  valid  at  law,  against  a  legal  claim  for  a 
just  debt,  and  where  there  is  no  accident  or  fraud.^ 

18.  But,  although  the  rule  above  stated  may  be  considered 
as  well  established,  the  rights  of  parties  to  agreements  to 
enforce  specific  performance  are  not  coextensive ;  for  their 
respective  rights  depend  upon  their  conduct,  and  the  con- 
duct of  one  may  give  him  the  right  to  apply  to  the  Court, 
while  the  conduct  of  the  other  may  debar  him  from  that 
right." 

19.  The  objection  of  want  of  mutuality  may  be  waived. 
Thus  a  bill  was  filed  by  a  railway  company,  for  specific  per- 

1  Harnett  v.  Yeildiiig,  2  Scho.  &  Lef.  *  Shackelford  v.  Handley,  1  A.  K. 
549.  Marsh.  370. 

2  Bodine  v.  Gladint,^  21    Penn.  50;  ^  Flifrht  w.  BoUand,  4  Russ.  298. 
German  v.  Machin,  6  Paige,  288.  *>  Minturn   v.  Seymour,  4  Johns.  Ch. 

^  Benedict  v.  Lynch,  1  Johns.  Ch.  500 ;  Woodcock  v.  Bennett,  I  Cow.  733. 
373;  Boucher  v.  Vanhnskirk,  2  A.  K.  '^  Southeastern,  &c.  v.  Knott,  17  Eng. 
Marsh.  346.  L.  &  Eq.  555. 

(a)  Uncertainty  as  to  the  rule  of  laio  applicable  to  the  case  has  also  been 
held  a  sufficient  objection  to  a  decree  of  specific  performance.  Thus,  upon 
a  late  decision  of  the  Court  of  Exchequer,  that  a  presumption  from  non- 
payment of  tithes  cannot  bar  even  a  lay  impropriator,  the  Lord  Chancellor, 
though  holding  the  contrary  opinion,  would  not  compel  a  purchaser  to  take 
a  title  depending  on  this  question  ;  and  dismissed  the  bill  against  him  for  a 
specific  performance.     Rose  w.  Calland,  5  Ves.  186. 


436  LAW   OF    VENDORS    AND    PDROIIASERS.  [CH.  XXV. 

formancc  of  a  contract  for  the  purchase  of  land,  entered  into 
by  their  agent*  The  defeiulaiit  objected,  that  it  did  not 
appear  that  the  agent  was  autliorized  under  the  corporate 
seal,  and  therefore  there  was  no  mutuality.  The  objection 
was  overruled,  on  the  ground  that  the  company  had,  before 
the  bill  was  filed,  acted  on  the  contract,  by  entering  into 
possession  of  the  land  and  making  a  railroad  over  it.' 

20.  Specific  performance  being  not  a  matter  of  right,  but 
of  discretion,-^  equity  will  not  decree  a  specific  execution  of 
articles,  where  they  appear  to  be  unreasonable  or  founded  on 
a  fraud?  Nor  in  a  hard  case ;  more  especially  where  the 
plaintiff  had  not  complied  with  the  terms.*  Thus,  under 
circumstances  that  would  have  amounted  to  a  breach  of 
trust,  inadequacy  of  consideration,  arising  from  gross  negli- 
gence of  the  agent,  and  a  want  of  due  authority  ;  the  bill 
was  dismissed,  though  the  plaintiff  was  unimpeached  ;  with- 
out prejudice  to  his  remedy  at  law.^  So  it  is  held,  that  the 
difference  between  that  degree  of  unfairness,  which  will  in- 
duce a  Court  of  Equity  to  interfere  actively,  by  setting  aside 
a  contract,  and  that  which  will  induce  a  Court  to  withhold 
its  aid,  is  well  settled ;  (see  p.  433,)  that  the  plaintiff  must 
come  into  Court  with  clean  hands,  and  that  a  defendant  may 
resist  a  bill  for  specific  performance,  by  showing  that  under 
the  circumstances  the  plaintiff  is  not  entitled  to  the  relief  he 
asks.  As  in  case  of  omission  or  mistake  in  the  agreement ; 
or  where  it  is  unconscientious  or  unreasonable;  or  where  there 
has  been  concealment,  misrepresentation,  or  any  unfairness  ; 
and  more  especially  if  to  any  unfairness  a  great  inequality 
between  the  price  and  value  be  added.^  So  it  is  held,  that, 
in  decreeing  specific  performance,  the  Court  is  bound  to  see 
that  it  really  does  that  complete  justice  which  it  aims  at, 
and  which  is  the  ground  of  its  jurisdiction.     Hence,  if  the 

1  Loiirlon.   &c.   r.  Winter,   1   Cra.  &  Clarke  r.  Rochester,  &c.  18  Barb.  350  ; 

Phil    57.  Torrey  v.  Buck,  1  Green.  Ch.  367. 

-  Blackwikler   v.   Loveless,    21   Ala.        *  Rugge  v.  Ellis,  1  Desaus.  161. 
371.  ^  Mortlock  v.  Buller,  10  Ves.  292. 

•'  Yonng  ?'.  Clerk.  Finch'5  Prec.  538 ;         «  Best  i'.  Stow,  2  Sandf.  Ch.  298. 
Sevniour  c.  Delancey,  6  John-;.  Ch  225; 


CH.  XXV.]  SPECIFIC   PERFORMANCE.  437 

claim  for  a  deed  is  not  just  and  reasonable ;  if  the  party  has 
been  grossly  negligent  of  his  rights,  or  has  abandoned  his 
contract ;  equity  will  not  afford  him  relief.^  So,  where  the 
contract  appears  hard  or  unreasonable  in  itself;  or  where, 
from  a  material  change  of  circumstances  since  the  contract, 
the  perforrilance  would  be  attended  with  peculiar  hardship 
to  the  defendant ;  the  complainant  will  be  left  to  his  remedy 
at  law.^ 

21.  Misrepresentation,  though  in  a  slight  degree,  is  an 
objection  to  specific  performance ;  though  it  might  not  be 
sufficient  to  rescind  the  contract.^  So  a  mere  concealment 
on  the  part  of  the  vendor.*  (See  Chap.  19.)  So  there  shall 
be  no  specific  performance,  in  case  of  any  surprise.)  making 
it  not  fair  and  honest  to  call  for  it ;  but  the  plaintiff  wiU  be 
left  to  law.^  So  in  case  of  accident  or  mistake ;  as  where  a 
lot  is  sold,  and  supposed  by  both  parties  to  be  of  certain 
dimensions,  and  found  afterwards  to  be  more  than  as  large 
again.6     (See  Chap.  18.) 

22.  So  a  misrepresentation  made  by  the  vendor  in  a 
matter  of  substance,  affecting  the  value  of  the  estate  sold, 
is  a  good  defence  to  a  suit  for  specific  performance,  although 
the  vendor,  as  well  as  the  vendee,  was  ignorant  of  its  un- 
truth. (See  p.  325.)  As  in  case  of  an  erroneous  statement, 
that  land  in  a  distant  State  was  situated  in  a  particular 
county,  in  which  the  purchaser  desired  to  buy.^ 

23.  A.  articles  to  sell  lands  to  B.  for  £15,000,  the  whole 
to  be  paid  in  money,  or  in  so  much  land  returned,  as  would 
make  up  what  he  paid  short  of  the  £15,000.  A.  conveys 
part  of  the  lands  to  B.,  and  by  his  persuasion  undervalues 
that  part.  Then  B.  sells  this  part  to  C,  and  would  then 
have  returned  so  much  of  the  rest  as  would  make  up  the 
,£15,000.  Articles  set  aside  as  unreasonable  ;  and  the  sale 
by  B.  to  stand.^ 

1  King  V  Morford,  I  Saxt.  Ch.  274.  ^  Mortlock  v.  Buller.  10  Ves.  292. 

2  Perkins  v.  Wright,  3  Har.  &  M'Hen.  "  ty^^hmidt  o.  Livingston,  3  Edw.  213 ; 
326  ;  Clitherall  v.  Ogilvie,    I    Desaus.     Mason  v.  Armitage,  13  Ves.  25. 

250  ;  Edwards  v.  Handley,  Hard.  602.  '   Best  v.  Stow,  2  8andf.  Ch.  298. 

3  Cadman  v.  Horner,  18  Ves.  10.  '^  Whorwood  y.  Simpson,  2  Vern.  186. 
*  Shirley  v.  Stratton,  1  Bro.  440. 

37* 


438  LAW    OF    VENDORS   AND    PURCHASERS.  [cil.  XXV. 

24.  A.  articles  with  B.  for  tlio  purchase  of  an  estate  of 
£180  per  annum,  for  which  he  is  to  give  thirty-five  years' 
purchase,  upon  a  grant  and  conveyance  to  him,  and  pays 
£50  in  part ;  but,  discovering  that  £30  per  annum  of  the 
lands  were  copyhold,  refuses  to  go  on.  On  a  bill  by  B., 
equity  will  not  decree  specific  execution,  the  agreement  being 
inequitable;  but  will  order  the  £50  to  be  paid  back.' 

25.  The  fraud  relied  upon  as  a  defence  may  be  a  fraud 
against  third  persons.  Thus,  upon  an  execution  against  the 
plaintiff  and  one  A.,  the  plaintiflf's  dwelling-house  was  levied 
on  and  advertised  for  sale.  By  request  of  the  plaintiff,  the 
defendant  bid  off  the  premises,  and  took  a  deed  from  the 
sheriff,  with  the  mutual  purpose  of  protecting  the  property 
from  the  creditors  of  the  plaintiff.  Held,  the  plaintiff"  could 
not  maintain  a  bill,  to  enforce  a  conveyance  from  the  de- 
fendant.2 

26.  So,  where  the   agreement  appears  to  have  been  made 
.to  defeat  or  defraud  a  creditor  of  the  plaintiff,  or  an  inter- 
vening purchaser  at  a  sheriff's  sale,  under  a  judgment  and 
execution  against  him ;    specific    performance   will   not   be 
decreed.^ 

27.  Specific  performance,  however,  will  not  be  refused, 
merely  because  the  contract  is  a  losing  one  for  the  plaintiff.* 
Thus  the  defendant  treats  with  the  plaintiff  for  a  piece  of 
land,  having  an  intention  to  build  a  mill,  to  which  the  con- 
sent of  the  corporation  is  necessary  ;  but  the  plaintiff  refuses 
to  treat  on  condition,  and  the  defendant  fails  in  obtaining 
consent.  This  failure  in  his  speculation  is  no  defence  against 
a  bill  for  specific  performance.^  So,  in  an  agreement  for  the 
purchase  of  an  estate,  one  of  the  stipulations  was,  that  the 
vendor  should  be  tenant  from  year  to  year  to  the  purchaser. 
Held,  the  inability  of  the  vendor  to  perform  this  stipulation, 
by  reason  of  embarrassments,  of  which  the  purchaser  must 

1  Hick  r.  Phillips,  Prec.  Cha.  5^.  ^  g^  jgim   v.  Benedict,  6  Johns.  Ch. 

■^  Baldwin  v.  Cainpfield,  4  Halst.  Ch.     111. 
600.  *  London  v.  Richmond,  2  Verii.  421. 

^  Adams  v.  XW-arc,  1  Bro.  567. 


CH.  XXV.]  SPECIFIC    PERFORMANCE.  439 

have  had  some   notice,  was  no  bar  to  the  specific  perform- 


ance 


28.  Specific  performance  will  undoubtedly  be  refused,  of  a 
contract  against  public  policy.  But  this  ground,  in  order  to 
be  effectual,  must  be  clearly  established.  Thus  the  defend- 
ant, having  a  preemptive  right  to  certain  public  land,  but 
being  unable  to  obtain  a  title  from  the  land  commissioners, 
as  the  land  might  be  needed  for  public  purposes,  entered 
into  an  agreement  with  A.,  that  A.  .should  procure  a  title  for 
him,  at  his  own  expense,  and  pay  half  the  purchase-money, 
for  which  the  defendant,  when  he  should  receive  his  deed, 
would  convey  to  him  half  the  lot.  A.  fulfilled  his  contract, 
and  a  deed  was  made  to  the  defendant.  Afterwards,  A. 
assigned  the  contract  to  the  plaintiff,  by  a  trust  deed  for 
benefit  of  creditors.  The  plaintiff  brings  a  bill  for  specific 
performance.  Held,  the  contract  was  not  against  public 
policy,  but  should  be  enforced.^ 

29.  An  aged  pefson  bound  himself  to  dispose  of  his  estate 
by  will  in  a  certain  way,  in  consideration  of  certain  pro- 
visions for  his  support  for  life.  Held,  this  agreement  was 
not  contrary  to  any  rule  of  policy ;  and,  in  case  he  should 
fail  to  make  a  will,  equity  would  decree  a  conveyance,  and 
a  jury  would  give  damages  to  the  amount  of  the  value  of 
the  property.^ 

30.  A  contract  of  sale  will  not  be  enforced  by  specific  per- 
formance, unless  founded  on  an  adequate  consideration^  (a) 
(See  p.  20,  p.  435.)     But  mere  difference  in  value,  though 

'  Lord  V.  Stephens,  1  Y.  &  Coll.  222.-        ^  Logan  v.  McGinnis,  12  Penn.  27. 
■^  Sedgwick  v.  Stanton,  18  Barb.  47.3.         *  Mead  v.  Randolph,  8  Tex.  191. 

(a)  It  is  said,  the  Court  cannot  speculate  on  the  damages  which  a  jury 
might  have  given  for  breach  of  an  agreement,  nor  on  the  damage  caused 
to  property  by  failure  of  a  sale ;  therefore  tlie  specific  performance  of  an 
agreement  of  hereditaments,  where  the  consideration-money  is  £50,  is  not 
too  small  a  matter  for  the  jurisdiction  of  the  Court.  Bennett  v.  Smith,  10 
Eng.  L.  &  Eq.  272. 

So  the  nature  of  the  principal  consideration  is  immaterial,  if  the  contract 
relate  to  land.     Thus  specific  performance  will  be  decreed,  though  the  land 


440  LAW    OP   VENDORS    AND    PURCHASERS.  [CH.  XXV. 

considerable,  is  not,  of  itself,  a  sufficient  ground  for  refusing 
a  specific  performance.'  So  it  has  been  held,  that  inade- 
quacy of  price,  in  order  to  have  this  elTect,  must  amount  in 
itself  to  conclusive  and  decisive  evidence  of  fraud.^ 

31.  But,  on  the  other  hand,  it  has  been  decided,  and  this 
is  the  prevailing  doctrine,  tliat,  though  mere  inadequacy  of 
price  is  not,  of  itself,  sufficient  to  set  aside  a  sale  of  land, 
yet  it  is  sufficient  to  induce  the  Court  to  refuse  to  decree  a 
specific  performance,  and,  to  leave  the  party  to  his  remedy  at 
law ;  especially  where  the  inadequacy  of  price  is  so  great, 
(being  half  the  value,)  as  to  give  to  the  contract  the  character 
of  unreasonableness,  inequality,  and  hardship.^ 

32.  More  especially  will  this  principle  be  applied,  where 
the  contract  is  not  in  its  terms  certain  and  explicit.     Thus 

A.  and  B.,  owning  adjoining  lands,  entered  into  an  agree- 
ment in  writing,  by  which  they  mutually  stipulated,  each  to 
lay  out  a  road  of  a  certain  width  through  his  own  land,  and 

B.  agreed  to  convey  to  A.  twenty  feet  of  land,  describing  it. 
On  a  bill  in  Chancery,  brought  by  A.  against  B.,  for  specific 
performance  of  B.'s  agreement  to  convey  the  land ;  held,  it 
did  not  appear,  that  the  laying  out  of  the  road  was,  in  any 

1  Emery  v.  Wasc,  8  Ves.  505.  3  Seymour  v.  Delancey,  6  Johns.  Ch. 

2  Coles  V.   Trecothick,  9   Ves.  234;     222;  3^ Cow.  445. 
Harrison  v.  Town,  17  Mis.  237. 

contracted  for  is  chiefly  valuable  on  account  of  its  timber.  J^quity  adopts 
this  principle,  not  because  the  land  is  fertile,  or  rich  in  minerals,  but  because 
it  is  land.     Kitchen  v.  Herring,  7  Ired.  Eq.  190. 

A.  made  a  parol  contract  for  the  purchase  of  land  from  B..  for  which  he 
paid  by  delivering  a  horse,  and  also  a  bond  of  C-,  which  he  caused  to  be  made 
payable  to  B.  C.  died  insolvent,  the  bond  not  having  been  collected.  Held, 
on  a  bill  for  specific  performance  or  compensation,  to  which  B.  pleaded  the 
Statute  of  Frauds,  that  A.  was  entitled  to  compensation ;  that,  so  far  as 
related  to  the  horse,  if  that  had  been  the  only  subject  of  controversy,  A.  would 
have  had  no  claim  to  relief,  as  he  could  have  had  complete  redress  at  law, 
upon  the  rescission  of  the  contract ;  but,  as  he  had  no  legal  redress  as  to  the 
bond,  that  equity  would  entertain  jurisdiction  of  that  matter;  and,  thus  tak- 
ing jurisdiction  of  part  of  the  case,  would  take  jurisdiction  of  the  whole, 
and  grant  the  relief  prayed  for.     Chambers  v.  Massey,  7  Ired.  Eq.  286. 


CH.  XXV.]  SPECIFIC   PERFORMANCE.  441 

way,  the  inducement  to  such  agreement  of  B.,  or  that  it  was 
such  a  special  benefit  to  B.,  or  injury  to  A.,  as  to  constitute 
a  legal  consideration ;  and  that  a  Court  of  Equity  will  not 
compel  specific  performance  of  an  agreement,  though  fairly 
made,  and  upon  such  a  legal  consideration  as  would  be 
sufficient  to  support  it  in  an  action  at  common  law,  if  the 
agreement  be  not  explicit,  or  the  consideration  inadequate.^ 

33.  On  the  other  hand  it  has  been  held,  that  specific  per- 
formance of  an  extravagant  purchase  might  be  decreed  ;2 
and  that  excess  of  price  over  value,  if  the  contract  be  free 
from  imposition,  is  not  of  itself  sufficient  to  prevent  such 
decree.  But  still  it  is  an  ingredient  which,  associated  with 
others,  will  contribute  to  prevent  the  interference  of  a  Court 
of  Equity.^  So  it  has  been  doubted,  whether  it  be  consistent 
with  the  rules  of  Equity,  to  decree  performance  of  so  extrav- 
agant and  unreasonable  a  bargain,  as  a  sale  of  land  at  forty 
years'  purchase.*  And  it  has  been  held,  that,  where  an  agree- 
ment is  entered  into  for  the  purchase  of  an  estate,  at  a  price 
far  beyond  its  value,  though  without  any  circumstances  of 
fraud  or  surprise ;  the  Court  will  not  decree  specific  perform- 
ance, but  on  the  other  hand  will  not  rescind.^ 

34.  Equity  will  enforce  an  award  of  arbitrators  upon  a 
contract  of  sale  and  purchase.  Thus  the  vendor  and  pur- 
chaser of  a  copyhold  estate  covenant,  for  themselves  and 
their  representatives,  to  fulfil  the  contract,  and  to  refer  the 
question  of  value,  under  a  penalty.  One  of  the  parties 
dying,  his  representatives  cannot  annul  the  decision  of  the 
referee,  by  showing  an  error  in  his  estimate,  or  compel  the 
acceptance  of  the  penalty,  in  satisfaction  of  their  breach  of 
contract.^ 

35.  But  it  is  held,  that,  according  to  the  Roman  and  the 
English  law,  as  administered  both  in  Courts  of  Law  and 
Equity,  a  fixed  price  is  an  essential  ingredient  in  a  contract 

1  Dodd  V.  Seymour,  21  Conn.  476.  ^  Day  v.  Newman,  2  Cox,  77. 

-  Keen  v.  Stuckely,  Gilb.  Eq.  155.  ••  Belchier  v.   Reynolds,  2  Keny.  2d 

•5  Best  V.  Stow,  2  Sandf.  Ch.  298.  part,  91. 

•1  Lewis  V.  Lechraere.  10  Mod.  503. 


442  LAW    OF    VENDORS    AND    PURCHASERS.  [CH.  XXV. 

of  sale.  A  contraqt,  therefore,  that  does  not  settle  the  price, 
is  valid  and  complete,  only  when  and  if  the  party  to  whom 
it  is  referred  shall  fix  it ;  and  is  otherwise  totally  inopera- 
tive.' 

36.  A  decree  was  made  for  specific  performance  of  an 
agreement  to  grant  a  lease,  rejecting  one  of  the  terms,  viz  : 
for  such  conditions,  &c.,  as  shall  be  judged  proper  by  (a  third 
person  named  ;)  and  substituting  a  reference  to  the  Master  ; 
the  agency  of  such  person  not  being  of  the  essence  of  the 
contract.'"^  So  execution  of  a  contract  was  refused  ;  the 
valuation  of  an  arbitrator,  who  settled  the  price,  not  being 
properly  and  discreetly  made.^  So,  though  referees  may 
take  the  opinion  of  a  third  person  as  evidence,  they  cannot 
previously  agree  to  be  bound  by  it.^  So,  though  a  person 
may  agree  to  sell  at  a  price  to  be  fixed  by  arbitration,  and  the 
award  can  be  impeached  only  upon  the  grounds  affecting  all 
awards,  as  fraud  or  gross  mistake,  yet,  upon  such  an  agree- 
ment, where  some  of  the  persons  to  be  bound  were  married 
women,  of  whom  also  one  had  not  executed,  the  Court 
refused  a  specific  performance,  and  dismissed  the  bill ;  leav- 
ing the  plaintiff  to  law.  Upon  an  appeal,  the  decree  was 
affirmed,  on  the  ground  that  the  evidence  did  not  prove 
satisfactorily,  as  it  ought,  especially  in  the  case  of  married 
women,  that  the  valuation  was  made  with  due  attention 
and  care.5 

37.  Two  surveyors,  who,  it  had  been  agreed,  should  fix 
the  price  of  an  estate,  stated  in  their  valuation  the  sum  to 
be  paid  and  the  quantity  of  land,  and  that,  if  it  proved  to  be 
less,  either  .£84  or  X42  should  be  deducted,  according  to  the 
parts  of  the  estate  in  which  the  deficiency  occurred,  but  did 
not  state  the  quantity  contained  in  each  part.  Held,  the 
valuation  was  uncertain,  and  a  specific  performance  coul^ 
not  be  enforced.^ 

'  Milnes  v.  Grey,  14  Ves.  400;  Gour-  Stu.  130.     See  Emery  v.  Wa.se,  5  Yes. 

lay  V.  SomcTSL-t,  19  Ves.  429.  846. 

-  Gourhiy  v.  Somerset,  19  Ves.  429.  ^  Emery  v.  Wase,  .5  Ves.  846. 

3  ll)id.  ^  Hopcraft  v.  Hickman,  2  Sim.  &  Stu. 

*  Hojicraft   V.   Hickman,    2    Sim.    &  130. 


CH.  XXV.]  SPECIFIC    PERFORMANCE.  443 

38.  Agreement  for  sale,  according  to  the  valuation  of  two 
persons,  one  chosen  by  each  party,  or  of  an  umpire,  to  be 
appointed  by  those  two  in  case  of  disagreement.  Bill  for  a 
specific  performance,  praying  that  the  Court  will  appoint  a 
person  to  make  the  valuation,  or  otherwise  ascertain  it, 
dismissed.^ 

39.  The  plaintiif  in  a  bill  for  specific  performance  must 
show  substantial  compliance  with  the  contract  on  his  own 
part.2  Thus  a  vendor,  seeking  specific  performance,  must,  if 
required  by  the  defendant,  exhibit  the  title  contracted  for.'^ 
So  a  decree  for  a  specific  performance  of  a  contract  to  pur- 
chase was  refused,  in  consequence  of  delay  and  a  defect 
of  title.^  So  it  is  said,  the  aid  of  a  Court  of  Chancery  will 
be  given  to  either  party  who  claims  specific  performance  of 
a  contract,  if  it  appear  that,  in  good  faith,  and  within  the 
proper  time,  he  has  performed  the  obligations  which  devolved 
upon  him.^  So  a  vendor  cannot  have  a  decree  for  specific 
performance,  unless  unquestionably  able  to  give  a  title, 
which  will  secure  full  and  unembarrassed  enjoyment  of  the 
property.^  More  especially,  where  the  complainant,  who 
seeks  specific  performance  of  a  sale,  has  not  performed  his 
own  contract,  the  Court  will  not  decree  specific  performance, 
if  any  injury  has  resulted  to  the  defendant  fi-om  such  non- 
performance." So  a  vendee's  objections  to  the  title  need 
not  be  confined  to  cases  of  a  doubtful  title ;  but  may  be 
extended  to  incumbrances  of  every  description,  which  may 
embarrass  him  in  the  full  enjoyment  of  his  purchase.*^ 

40.  A  decree  in  Chancery,  declaring  the  Court's  opinion, 
that  an  agreement  for  the  sale  of  land  should  be  specifically 
performed  by  both  the  parties,  and  directing  the  vendee  to 
execute  a  mortgage  of  the  same  land  to  secure  the  purchase- 

1  iMilnes  v.  Grey,  14  Vcs.  400.  "^  St.  Mary's,  &c.  v.  Stoc-kton,4  H:\lst. 

-  Hoc  V.  Simmons,  I  Cal.  119  ;  Beck-  Ch.  .520  ;  Garnett  v.  Macon,  6  Call,  308. 

with  1-.  Kouns,  6  B.  Mon.  222  :  Garnett  '  Ramsav   v.    Brailsford,    2    Desaus. 

V.  Mnc5n,  6  Call,  308.            '  582  ;  Beckwith  v.  Kouns,  6  B.  Mon.  222. 

3  Tomlin  v.  M'Chord,  5  J.  J.  Marsh.  **  Garnett   v.    Macon,    6    Call,   308  ; 

136.  Butler  u.  O'Hear,  1  Desaus.  382  ;  Reed 

*  Watts  V.  Waddle,  6  Pet.  389.  v.  Noe,  9  Yerj^.  283. 

5  Ibid. 


444  LAW    OV    VKNDORS    AND    PURCHASERS.  [OII.  XXV, 

money,  is  to  be  understood,  as  requiring  the  vendor,  in  the 
first  place,  to  make  a  title  to  him.' 

41.  The  same  duty  is  exacted  from  a  purchaser,  as  from  a 
vendor,  in  performing  his  own  part  of  the  contract,  before 
he  can  maintain  a  bill  for  specific  performance.  Thus,  where 
a  trustee's  sale  is  made  for  cash,  the  purchaser,  unless  he 
tenders  the  money  in  reasonable  time,  cannot  demand  specific 
performance  against  the  debtor,  who  has  paid  the  debt  and 
costs,  especially  if  the  purchase  was  obtained  through  the 
inadvertence  of  the  debtor.^ 

42.  So  specific  performance  of  a  sale,  being  within  the 
discretion  of  the  Court,  will  not  be  enforced  against  a  subse- 
quent purchaser  for  valuable  consideration,  without  notice ; 
especially  in  favor  of  a  vendee,  who  has  failed  to  comply 
with  his  own  contract,  within  the  time  limited.^ 

43.  Questions  have  often  arisen  as  to  the  right  of  specific 
performance,  where  the  vendor  is  able  to  make  a  title  to  the 
property  only  in  part.  Thus,  where  an  entire  tract  of  land 
was  sold,  and  the  complainant,  the  vendor,  at  the  time  he 
filed  his  bill,  had  no  legal  title  to  a  part ;  held,  he  had  no 
right  to  enforce  specific  performance.*  So  the  Court  will 
not  decree  performance  of  a  sale,  where  there  is  a  failure  of 
title  to  an  undivided  portion  of  the  land,  which  the  vendee 
has  not  agreed  to  take  at  his  own  risk ;  although,  if  the 
vendor  has  executed  a  conveyance,  with  warranty,  Chancery 
will  not  rescind  the  sale,  but  leave  the  grantee  to  his  legal 
remedy  upon  the  covenants.^  (a) 

4A.  But  equity  will  compel  a  vendor  to  a  specific  perform- 
ance of  a  contract  for  the  sale  of  land,  for  a  part  of  the  land, 

'  Mayo  V.  Purcell,  3  Munf.  243.  *  Eeed  v.  Noe,  9  Yerg.  283. 

2  Hener  v.  Kutkowski,  18  Mis.  216.  ^  Bates  v.  Delavan,  5  Paige,  300. 

3  Doar  V.  Gibbes,  1  Bai.  Eq.  371. 


(a)  In  case  of  a  contract  to  purchase  lots,  to  two  of  which  a  title  could 
not  be  made,  and  in  others  there  had  been  a  deterioration  in  value ;  if  the 
value  of  the  remaining  lots  is  not  affected  by  that  deterioration,  a  specific 
performance  shall  be  decreed  as  to  all  but  two.  Poole  v.  Shergold,  2  Bro. 
118. 


CII.  XXV.]  SPECIFIC   PERFORMANCE.  445 

where  he  has  incapacitated  himself  from  conveying  the 
whole.  And  where  the  land  contracted  to  be  sold  was  held 
in  common,  and  the  vendor,  after  the  agreement,  divided 
with  the  other  tenants  in  common,  and  executed  a  deed  of 
partition,  it  was  held  that  the  partition  was  no  objection  to 
a  specific  performance,  if  the  party  was  capable  of  perform- 
ing the  whole ;  but  that  there  is  a  distinction  in  this  respect, 
between  the  case  where  the  vendee  seeks  to  compel  the 
vendor  to  a  specific  performance,  and  where  the  vendor  re- 
sorts to  equity  to  compel  a  specific  performance  on  the  part 
of  the  vendee.  But  a  conveyance  for  a  valuable  considera- 
tion, made  bond  fide  to  a  third  person,  without  notice  of  the 
previous  contract  of  sale,  before  it  has  been  carried  into 
execution,  will  transfer  the  legal  title  to  such  third  person.^ 

45.  Upon  a  bill  for  specific  performance,  if  the  vendor's 
title  to  a  part  of  the  land  sold  is  doubtful,  the  Court  cannot 
compel  him  to  make  good  that  part,  by  a  conveyance  of 
land  out  of  the  same  survey,  to  which  he  has  an  undoubted 
title  ;  but  will  give  a  compensation  in  money.  In  such 
case,  the  vendor  having  acted  in  good  faith  in  the  sale,  the 
measure  of  compensation  is  tl^  price  given,  with  interest, 
not  the  present  value  of  the  land.^ 

46.  Questions  have  also  arisen,  as  to  the  effiect,  upon  the 
claim  for  specific  performance,  of  a  part-payment  of  the 
purchase-money.  Thus,  on  a  contract  between  the  plaintiff" 
and  defendant  for  the  sale  of  land,  payment  by  the  plaintiff 
was  made  a  condition  precedent  to  the  conveyance.  After 
a  default,  the  defendant  accepted  part  of  the  purchase- 
money,  but  the  plaintiff,  though  repeatedly  called  on,  refused 
to  complete  the  payment.  The  defendant,  after  giving  no- 
tice of  his  intention  to  do  so,  sold  and  conveyed  the  land  to 
another ;  and  the  plaintiff,  afterwards,  tendered  the  money 
due  on  the  contract,  and  filed  a  bill  for  specific  performance. 
Held,  a  specific  performance  could  not  be  decreed  ;  nor  could 
the  bill  be  sustained  for  compensation.^ 

'  Waters  v.  Travis,  9  Johns.  450.  ^  Hatch  v.  Cobb.  4  Johns.  Ch.  559. 

-  Kelly  V.  Bradford,  3  Bibb,  317. 


44l)  LAW  OF  VENDORS  AND  PURCHASERS.     [(Ml.  XXV. 

47.  We  have  already  liad  occasion,  (Cliap.  9,)  in  connec- 
tion with  the  Statute  of  Frauds,  to  consider  the  eflect  of 
part-performance  of  a  verbal  contract  for  the  sale  and  pur- 
chase of  lands,  in  taking  such  contract  out  of  the  operation 
of  the  statute.  This  elfect  is  chiefly  if  not  wholly  recog- 
nized in  ftourts  of  Equity,  and  by  applying  the  remedy  of 
specific  performance.  The  subject  may  therefore  be  properly 
further  considered  in  the  present  connection.  As  has  been 
seen,  in  case  of  possession  by  the  vendee,  valuable  improve- 
ments made  by  him,  and  more  especially  if  the  price  has  been 
also  paid  ;  specific  performance  will  be  decreed,  upon  the 
ground  that  to  refuse  performance  under  these  circumstances 
would  be  an  encouragement  to  fraud.^  Thus,  where  the 
vendee  had  possession  many  years  with  the  vendor's  con- 
sent, cultivated  and  built  upon  the  land,  without  objection ; 
specific  performance  was  decreed,  on  payment  of  the  balance 
of  the  price.2  So,  after  part-performance,  specific  execution 
was  decreed  of  a  contract  for  exchange.^  So  the  defendant 
verbally  agreed  with  the  plaintiff,  his  son,  that,  if  he  would 
go  and  live  on  twenty-five  acres  of  woodland,  belonging  to 
the  defendant,  and  clear  a.n<\  improve  such  parts  of  it  as  the 
defendant  should  direct,  for  tilling  and  meadow,  the  defend- 
ant would,  after  the  commencement  of  the  improvements, 
convey  to  him  in  fee.  The  plaintiff,  according  to  his  con- 
tract, accepted  the  proposal,  entered,  cleared  a  large  part  of 
the  tract,  built  on,  and  otherwise  improved  it,  and  continued 
to  occupy  for  sixteen  years.  Held,  the  plaintiff  was  entitled 
to  specific  performance.'* 

48.  A  feme  covert,  being  entitled,  under  her  marriage 
settlement,  to  an  interest  in  the  settled  lands  for  her  separate 
use  for  life,  with  a  power  of  leasing  for  any  term  not  exceed- 
ing twenty-one  years  in  possession,  leased  part  of  the  lands 
for  fourteen  years  to  D.,  and,  about  a  year  and  a  half  before 
the  expiration  of  that  lease,  agreed  with  D.  in  writing,  upon 

'  Hawkins  v.  Hunt,  14  111.42  ;  John-  -  Dugan  v.  Cohuille,  8  Tex.  126. 
son  V.  M'Gruder,  15  Mis.  365  ;  Gilmore  ^  Pairill  v.  McKinloj,  9  Gratt.  1. 
i;.  Joiniston,   14  Geo.  683.  *  France  l\  France,  4  Halst.  CI).  6.50. 


CH.  XXV.]  SPECIFIC   PEKFORMANCE.  447 

the  expiration  of  the  lease,  to  grant  D.  a  new  lease  upon  the 
same  terms  and  for  the  same  period.  The  lease  expired, 
and  D.  continued  in  possession,  without  taking  a  ziew  lease, 
but  doing  acts  on  the  premises,  which  were  solely  referable 
to  the  written  undertaking.  Afterwards,  the /ef/ie  covert  died. 
Held,  that  the  written  undertaking  was  a  valid  execution  of 
the  power ;  and  that  the  transaction  amounted  to  an  agree- 
ment, which  was  in  part  performed  by  the  continuance  of 
the  possession,  and  was  therefore  capable  of  being  enforced 
in  a  Court  of  Equity.^ 

49.  Upon  this  subject,  the  general  principle  is  laid  dov^m, 
that  although,  generally,  a  purchaser  cannot  be  called  on  for 
his  money,  until  he  has  a  title,  yet,  where  he  is  let  into  pos- 
session upon  a  mutual  confidence  of  a  speedy  title,  and  the 
difficulty  is  a  mutual  surprise,  he  cannot,  without  express 
contract,  retain  the  possession,  withholding  the  money.^ 
After  such  part-performance,  upon  a  bill  brought  by  the 
vendor  for  specific  execution  of  the  contract,  the  usual 
course,  in  the  English  practice,  is  to  order  payment  of  the 
purchase-money  into  Court.  Thus  a  vendee  in  possession, 
objecting  to  the  title,  must  pay  in  the  purchase-money,  or 
give  up  possession.^  So  a  purchaser,  who  had  been  three 
years  in  possession,  and  who  had  not  paid  the  purchase- 
money  on  the  groun?l  that  a  good  title  had  not  been  made 
out,  was  ordered  either  to  pay  the  purchase-money  within 
two  months,  or  to  give  up  possession.*  And  slighter  acts  of 
ownership  are  sufficient,  where  they  have  been  committed 
since  the  discovery  of  an  objection  to  the  title.^  So  a  vendee 
in  possession,  objecting  to  the  title,  has  been  ordered  to  pay 
the  purchase-money  into  Court,  merely  on  motion.  So, 
though  possession  was  not  admitted  by  the  answer,  and  did 
not  appear  by  the  pleadings,  but  was  only  shown  by  affi- 


1  Dowell  V.  Dew,  I  Y.  &  Coll.  345.  *  Tindal  v.   Cobham,  2  Mv.  &  Kee. 

2  Gibson  v.  Clarke,  1  Ves.  &  B.  500.     385. 

=*  Smith  V.  Lloyd,  1  Madd.  83;  Clarke         &  Dixon  v.  Astley,  I  Mer.  133. 
V.  Wilson,  15  Ves.  317  ;  Dixon  v.  Ast- 
ley, 1  Meri.  133. 


448  LAW  OF  VENDORS  AND  PURCHASERS.     [cn.  XXV. 

davit.'  Thus  a  purchaser  of  a  coal-mine  was  ordered,  be- 
fore conveyance,  to  pay  into  Court  instalments  due,  and 
interest,  according  to  the  contract,  being  in  possession  of  the 
mine  and  working  it.'-*  So,  the  defendant  being  in  posses- 
sion, and  having  exercised  acts  of  ownership,  payment  of 
the  money  was  ordered,  though  an  infant  heir  was  a  neces- 
sary party  to  the  conveyance.'"^  So,  upon  a  bill  for  specific 
performance,  filed  by  a  vendor,  it  appeared  that  by  the  agree- 
ment for  sale,  the  purchaser  was  to  pay  part  of  his  purchase- 
money  on  a  certain  day,  when  the  conveyance  was  to  be 
executed,  and  the  residue  secured  by  mortgage,  payable  at 
not  less  than  twelve  months  from  the  date  of  the  convey- 
ance. The  purchaser  entered  into  possession  immediately, 
but,  on  some  objections  to  the  title,  refused  to  pay  his  pur- 
chase money.  More  than  twelve  months  having  elapsed 
from  the  time  when  the  conveyance  ought  to  have  been 
executed,  the  defendant  was  on  motion  ordered  to  pay  the 
purchase-money  into  Court.* 

50.  A  purchaser  (a  trustee,  acting  on  behalf  of  himself 
and  others,  his  co-trustees,  and  of  the  cestui  que  trusts)  was 
ordered  to  pay  the  purchase-money  into  Court,  the  agree- 
ment having  been  entered  into  in  the  name  of  himself  alone ; 
upon  affidavits  that  the  plaintiffs  (the  vendors)  had  no  notice 
of  his  acting  for  others,  and  of  acts  of  ownership  committed 
since  possession  given  to  him  under  the  agreement,  in  oppo- 
sition to  the  answer,  alleging  notice  and  denying  any  acts 
of  ownership  by  himself  or  by  any  other  person,  to  his 
knowledge.^ 

51.  So  a  purchaser  in  possession,  who  has  made  alterations 
and  improvements  on  the  estate,  will  be  ordered  to  pay  the 
purchase-money  into  Court.^  So  acts  of  ownership,  amount- 
ing to  waste,  by  alteration  and  conversion  of  property,  are 
sufficient  to  induce  the  Court  to  order  payment  of  the  pur- 

1  Boothhy  v.  Walker,   1   Madd.  197  ;  *  Younge  v.  DuncomlK',  You.  275. 

Blackburn  v.  Stace,  6  Madd.  69  ;  Bur-  ^  Crutchley  v.  Jerningliam,    2   Mer. 

roughs  r.  Oakley,  1  Meri.  52.  502. 

-  Buck  V  Lodge,  18  Ves.  450.  «  Bramley  v.  Teal,  3  Madd.  219. 

•'  Bradshaw  v.  Bradshaw,  2  Mer.  492. 


CH.  XXV.]  SPECIFIC   PERFORMANCE.  449 

chase  money  into  Court,  upon  the  ground  that  a  vendor  has 
a  lien  on  the  estate  for  the  amount,  and  might  have  filed  his 
bill  to  restrain  such  acts ;  and,  though  the  bill  contained  no 
charge  of  such  acts,  the  order  was  made  on  an  affidavit,  sup- 
plying the  fact,  the  defendant  not  having  answered,  nor 
being  in  contempt,  nor  under  any  order  for  time.^ 

52.  There  is,  however,  as  has  been  seen,  (Chap.  9,)  a 
class  of  cases,  which  very  much  restrict  and  qualify  the  rules 
above  laid  down,  as  to  the  effect  of  part-performance  upon 
parol  contracts.  Thus  it  is  held,  that  specific  performance 
will  not  in  such  case  be  decreed,  unless  such  a  change  has 
been  thereby  caused,  as  makes  it  difficult  to  put  the  vendee 
in  statu  quo?  So,  in  order  to  enforce  specific  performance, 
the  contract  must  be  clear,  definite,  and  unequivocal,  and  be 
proved  as  alleged,  by  competent  evidence,  and  the  acts  of 
part-performance  must  also  be  clear  and  definite,  and  apply 
exclusively  to  such  contract.^  Thus,  in  case  of  an  alleged 
parol  contract  of  sale,  evidence  was  offered,  on  one  side, 
of  possession,  and  of  the  declaration  of  the  former  owner, 
under  whom  both  parties  claimed,  that  he  had  made  such  a 
contract,  and,  on  the  other,  that  the  party  in  possession  had 
said,  he  "  only  had  the  use  of  the  land."  Held,  the  evidence 
was  too  uncertain  to  authorize  a  decree  for  specific  perform- 
ance.* So  it  has  been  held,  that  equity  will  not  enforce  a 
parol  gift  of  land  from  father  to  son,  though  possession  has 
been  taken,  either  as  against  the  donor  or  his  heirs,  execu- 
tors, &c.^  So  specific  performance  of  a  parol  sale,  proved 
by  one  witness,  and  confirmed  by  taking  possession  and 
acts  of  ownership,  was  refused ;  there  being  some  incon- 
sistencies in  the  testimony  of  the  witness,  which,  with  other 
circumstances,  placed  the  terms  of  the  contract  in  doubt.^ 
So  a  vendee  cannot  enforce  specific  performance,  by  show- 
ing a  receipt  for  part  of  the  price,  which  designates  the  land, 

^  Cutler  (;.  Simon?,  2  Mer.  103.  '  Rankin  v.  Simpson,  IQPenn.  471. 

-   Dui^an  V.  Coliuille,  8  Tex.  126.  ">  Pinckard  v.  Pinckard,  23  Ala.  649. 

'■''  Mundurff  v    Howard.  4  Md.  459  ;  ''  Reynolds  v.  Waring.  You.  .346. 
Charnley  r.  Hansbury,  13  Penn.  16. 

38* 


450  LAW    OF   VENDORS   AND    PURCHASERS.  [c'll.  XXV. 

but  not  the  price  or  other  terms  of  sale.'  So  specific  per- 
formance will  not  be  decreed  of  a  parol  contract,  made  by 
,  husband  and  wife,  for  the  sale  of  the  wife's  estate,  where  a 
deed  has  been  executed  by  both,  if  the  wife  die  before  the 
deed  be  delivered,  or  the  estate  taken  possession  of  by  the 
vendee,  or  the  purchase-money  paid.'^  So,  in  case  of  an  oral 
agreement  for  the  sale  of  land,  the  parties  went  together  to 
an  attorney  and  had  a  deed  drawn,  the  grantor  signed  it,  the 
grantee  paid  part  of  the  consideration,  and,  after  both  pas- 
ties had  examined  the  deed  and  expressed  themselves  satis- 
fied with  the  form,  the  grantor  took  it  for  the  purpose  of 
procuring  a  release  of  dower.  Held,  as  there  had  been  no 
delivery,  the  deed  was  invalid  as  such,  and  could  not  for  the 
same  reason  be  enforced  as  an  agreement  in  writing.^  (a) 

1  Soles  V.  Hickman,  20  Peim.  180.  '^  Parker  w.  Parker,  1  Gray,  409. 

^  Leland's  Appeal,  13  Penn.  84. 

(a)  Many  cases  are  found  In  the  books,  not  arising  frona  a  claim  for  specific 
performance,  in  which  the  same  restrictions  have  been  recognized,  upon  the 
effect  of  part-performance  of  pai'ol  contracts.  Thus  the  defendant  had 
entered  into  an  agreement  for  sale  of  his  estate,  and  had  received  part  of 
his  purchase-money  ;  after  which  an  extent  issued  against  him.  Held,  as  he 
had  not  executed  any  conveyance,  the  fee  was  in  him,  and  the  agreement 
had  no  operation  against  the  extent.  Rex  v.  Snow,  1  Price,  220  n.  So, 
where  a  party  takes  possession  of  land,  under  an  alleged  parol  agreement  to 
convey,  and  afterwards  attorns  to  the  vendor  by  taking  a  written  lease,  he 
is  held  to  occupy  under  the  lease,  and  forfeits  his  rights  by  virtue  of  posses- 
sion under  the  agreement;  even  though  the  object  of  the  lease  was  to  pro- 
tect the  property  of  the  party  in  possession  from  his  creditors.  Rankin  v. 
Simpson,  19  Penns.  4  71.  So,  where  a  purchaser  had  paid  part  of  the  pur- 
chase money,  and  was  let  into  possession,  but  the  vendor  had  not  executed 
any  conveyance  ;  held,  a  mere  tenancy  at  will  in  the  former,  and  the  latter, 
having  made  a  demand  of  possession,  to  determine  the  tenancy,  might 
recover  the  lands  by  ejectment.  Doe  v.  Miller,  5  Carr.  &  Payne,  595.  So 
a  parol  agreement,  made  by  the  owner  of  land  with  an  owner  of  adjacent 
land,  to  straighten  the  line  by  the  removal  of  an  old  crooked  fence  there- 
from, and  the  erection  of  a  new  and  straight  fence  in  its  stead,  may  be 
revoked  at  any  time  before  such  new  fence  shall  be  completed  ;  and,  if  the 
adjacent  owner  persists  in  erecting  such  new  fence,  after  having  notice  to 
desist,  he  will  be  liable  to  an  action  of  trespass,  and  cannot  sustain  a  plea  of 


CH.  JXV.]  SPECIFIC   PERFORMANCE.  451 

53.  Although,  in  general,  as  has  been  seen,  a  purchaser 
shall  not  retain  possession  of  the  estate  and  also  keep  his 
purchase-money ;  yet,  where  he  is  willing  to  give  up  pos- 
session, and  it  is  a  question  whether  there  is  or  not  a  sub- 
sisting contract,  Chancery  will  not  order  payment  of  the 
purchase-money  into  Court/  So  it  has  been  held,  that  a 
vendor,  permitting  the  vendee  to  take  possession  before  com- 
pletion of  the  title,  without  any  stipulation  as  to  the  pur- 
chase money,  cannot,  on  motion,  have  the  purchase-money 
paid  into  Court.^  So  a  motion  by  one  tenant  in  common, 
who  had  agreed  to  sell  to  the  other,  that  the  latter  should 
pay  his  purchase-money  into  Court,  was  refused  ;  where 
such  purchaser  had  been,  before  and  at  the  time  of  the 
purchase,  in  possession  of-  the  whole,  with  the  approbation 
of  the  vendor.^  So  it  is  held,  that,  on  a  biU  by  a  vendor  for 
specific  performance,  the  Court  will  not,  before  answer,  make 
an  order  for  payment  of  the  purchase-money  by  the  defend- 
ant in  possession,  unless  under  special  circumstances,  such 

1  Morpan  v.  Shaw,  2  Mer.  188.  ^  Freebody  v.  Perrv-  Coop.  91. 

^  Clarke  c.  Elliott,  1  Madd.  606. 


liberum  tenementum,  by  any  parol  admissions,  or  other  parol  evidence,  that 
the  true  boundary  line  was  always  understood  to  be  a  straight  one.  Davis 
V.  Townsend,  10  Barb.  333. 

And  the  effect  of  mere  possession,  as  a  waiver  of  any  objections  which 
might  otherwise-be  made  to  the  enforcement  of  a  contract,  has  been  iu  like 
njanner  restricted  with  reference  to  subjects  not  specially  connected  with 
real  estate  Thus  it  is  held,  that  the  purchaser  of  a  share  in  a  copartnership 
business  does  not  waive  objections  to  the  title,  by  taking  possession  of  the 
property  and  acting  as  a  partner,  when  the  contract  stipulates  that  a  good 
title  shall  be  made  by  a  specified  future  day,  and  it  appears  to  have  been  the 
intention  of  the  parties,  that  the  purchaser  should  immediately,  and  before 
that  (lay,  have  the  possession.  In  this  case,  the  vendor  filed  a  bill  against 
the  purchaser,  who  had  taken  possession,  charging  that  he  had  grossly  mis- 
managed the  property  and  destroyed  its  value,  and  praying  that  he  might 
be  declared  to  have  accepted  the  title,  and  decreed  to  perform  the  contract 
specifically.  Held,  the  title  had  not  been  accepted,  and,  as  a  good  title  was 
not  shown,  a  specific  performance  could  not  be  decreed.,  Stevens  v.  Guppy, 
3  Russ.  171. 


452  LAW    OF    VENDORS    AND    PURCHASERS.  [CII.  XXV. 

as  unreasonable  delay,  committing  acts  of  ownership  in 
alteration  of  the  property,  &c.'  So,  where  the  defendant  is 
in  possession,  not  under  the  agreement  to  purchase,  but  as 
tenant  to  the  plaintilF,  or  independently  of  the  agreement  at 
the  time  of  the  purchase,  no  such  order  will  be  made,''^  More 
especially  on  motion,  and  where  there  had  been  laches  on 
the  part  of  the  vendor  in  completing  his  title.^ 

54.  According  to  the  bill,  a  parol  agreement  was  for  the 
sale,  and  possession  had  been  given,  of  five  acres.  Accord- 
ing to  the  answer,  of  three  acres  only.  A  motion,  that  the 
purchase-money  for  the  five  acres,  or  otherwise  for  the  three 
acres,  might  be  brought  into  Court,  was  refused.*  («) 

^b.  With  regard  to  the  pleadings  and  general  course  of 
practice  in  bills  for  specific  performance ;  it  is  held  that,  if 
the  defence  depends  merely  on  want  of  title  in  the  vendor, 
the  defendant  ought  to  rest  on  his  answer,  and  not  file  a 
cross-bill  to  have  the  contract  delivered  up,  or  to  prevent  an 
action  ;  for  the  plaintiff  cannot  succeed  at  law.^ 

bQ.  If  a  'defendant  pleads  the  Statute  of  Frauds  to  a 
bill  for  specific  performance,  he  must  by  answer  deny  the 
agreement.     His  admission  takes  it  out  of  the  statute.^ 

57.  The  plaintiff,  whilst  a  papist,  assigned  an  advowson 
to  the  defendant,  for  ninety-nine  years,  and,  having  con- 
formed, brought  his   bill  for  a  re-assignment  of   the  term, 

1  Bonner  v.  Johnston,  1  Mer.  366.  "*  Benson    v.    Glastonbury,    &c.    C. 

•2  Ibid.  Coop.  350 

3  Fox  I'.  Birch,  I  Mer.  105.  ^  Hilton  v.  Barrow,  1  Ves   284. 

6  Child  V.  Godolphin,  1  Dick.  39. 


(a)  A  similar  principle  to  that  stated  in  the  text  has  been  applied  to  a 
claim  for  the  rents  and  profits  of  the  estate,  after  occupation  by  the  pur- 
chaser ;  the  vendor  failing  to  make  a  good  title.  Thus,  on  a  bill  by  a  ven- 
dor fur  specific  performance,  where  the  purchaser  had  in  1814  entered  into 
possession,  and,  pending  the  suit,  continued  in  possession  until  1823;  the 
plaintiff,  in  consequence  of  a  defect  in  the  title,  failing  in  his  attempt  to 
compel  performance,  the  Court  refused  to  decree,  under  the  prayer  for 
general  relief,  an  account  of  rents  and  profits  against  the  purchaser,  though 
he  had  stated  by  hys  answer,  that  he  was  willing  to  pay  a  fair  rent.  Williams 
c.  Shaw,  3  Russ.  1  78. 


CH.  XXV.]  SPECIFIC    PERFOllMANCE.  453 

suggesting  that  he  had  only  assigned  it  in  trust  for  himself, 
and  to  avoid  the  penalties  of  3  Jac.  1  and  1  W.  &  M.  The 
defendant  pleaded  the  Statute  of  Frauds  in  bar  to  the  dis- 
covery, but  by  his  answer  admitted  that  the  advowson  was 
assigned  to  him  for  the  purposes  charged.  Held,  the  plea 
must  be  overruled,  being  coupled  with  an  answer  which 
admits  facts.^ 

58.  The  bill  prayed  execution  of  an  agreement.  The 
defendant  denied  this  agreement,  but  admitted  a  different 
one.  Bill  dismissed,  without  prejudice  to  a  bill  for  perform- 
ance of  the  admitted  agreement.'-^ 

59.  Though  a  defendant  irr  a  bill  for  specific  performance 
may  have  a  decree  for  performance  according  to  his  con- 
struction, if  adopted  by  the  Court,  without  a  cross-bill ;  the 
decision  being  not  according  to  his  construction,  but  only 
that  he  had  contracted  under  mistake,  created  by  the  plain- 
tiff, the  bill  was  merely  dismissed.-^ 

60.  It  seems,  the  Court  will  not,  on  motion,  decide  upon 
the  validity  of  any  other  objection  than  defect  of  title,  which 
may  be  raised  by  the  answer  to  a  bill  for  specific  perform- 
ance, but  reserve  it  to  the  hearing.* 

61.  Bill  for  specific  performance  of  a  parol  agreement  to 
renew,  plaintiff  having  built  a  house.  The  only  witness  for 
the  plaintiff  proved  an  agreement  different  from  that  in  the 
bill,  and  the  defendants  by  answer  stated  an  agreement  dif- 
ferent from  both.  Held,  in  strictness,  the  bill  ought  to  be 
dismissed  ;  but  specific  performance  was  decreed,  according 
to  the  answers,  with  costs  against  the  plaintiff.^ 

62.  Specific  execution  of  a  parol  agreement  for  a  lease 
for  three  lives,  proved  by  one  witness,  was  refused ;  the 
answer  admitting  an  agreement  for  one  life  only,  supported 
by  the  testimony  of  one  witness,  and  not  being  inconsistent 
with  the  evidence  of  part-performance  given  by  the  plaintiff.*^ 

63.  Bill  for  specific  performance  of  an  agreeq^nt  to  con- 

'   Cottington  v.  Fletcher,  2  Atk.  155.  *  Gordon  v.  Ball,  1  Sim.  «&  Stu.  ITS. 

-  Lindsay  v.  Lynch,  2  Scho.  &  Lef.  1.  ^  Mortimer  ?;.  Orchard,  5  Ves.  24.3. 

•^  Higginson  v.  Clowes,  15  Ves.  516.  ^'  Lyndsay  v.  Lynch,  2  Scho.  &  Lef.  1. 


454  LAW    OF    VENDORS    AND    PURCHASERS.  jCII.  XXV. 

vey.  The  complainant  alleged  payment  of  part  of  tlu^  pur- 
chase money,  under  a  verbal  agreement,  prior  to  the  written 
contract.  A  feigned  issue  was  awarded,  to  try  the  question 
of  payment,  and  the  jury  found  the  fact.  Held,  the  defend- 
ant, having  acquiesced  in  the  feigned  issue,  and  controverted 
the  fact  at  the  trial,  could  not  afterwards  object  to  the  decree 
allowing  the  payment. 

64.  So,  where  the  agreement  was,  that  A.  and  B.  should 
sell  and  convey  to  C,  and  the  payment  was  made  to  A., 
who  had  no  legal  title  ;  held,  B.  could  not  afterwards  object 
to  such  payment,  but  it  was  to  be  considered  as  made  to  B.' 

65.  A.  conveyed  to  B.  a  tract  of  land,  reserving  "  the 
house  and  garden."  It  was  agreed  by  the  parties,  that  the 
use  of  the  "  door-yard  "  and  "  firewood  "  should  also  be  re- 
served to  A.  for  life  ;  but  this  latter  agreement  was  not 
inserted.  B.,  on  discovering  the  omission,  offered  to  have  it 
corrected,  which  offer  A.  refused,  and  refused  to  fulfil  the 
contract.  B.  filed  his  bill  for  a  specific  execution  on  the 
terras  of  the  original  agreement.  Held,  that  the  case  was 
not  within  the  Statute  of  Frauds,  B.  not  seeking  a  decree 
for  more  than  he  was  entitled  to  by  his  written  contract,  but 
less  ;  and  that  a  conveyance  should  be  decreed  to  B.  on  pay- 
ment of  the  purchase-money  with  interest,  deducting  a 
reasonable  sum  for  the  profits  of  the  land  from  the  time  he 
was  entitled  to  possession  under  the  contract.'-^ 

66.  Where  the  Court,  on  a  bill  for  specific  performance, 
passed  a  decree,  ordering  execution  of  a  good  deed  with  the 
usual  covenants  of  seisin  and  warranty  ;  held,  the  import  of 
the  agreement  was,  to  convey  the  land  by  deed,  so  as  effect- 
ually to  transfer  an  unincumbered  title  in  fee  ;  that,  to  effect 
such  transfer,  a  deed  with  such  covenants  was  not  neces- 
sary; and,  as  the  decree  transcended  the  agreement,  it  was 
erroneous.^ 

67.  Speftfic  performance  was   decreed,  with  costs,  \\Kiere 

1  Waters  v.  Travis,  9  Johns.  450,  4C4,         -  Baxter  v.  Brand.  6  Dana,  296. 
465,  '^  E/odd  v.  Seymour,  21  Conn.  47G. 


CH.  XXV.]  SPECIFIC    PEKFOEMANCE.  455 

the  defendant,  objecting  to  the  title,  had  been  served  with 
^notice  of  a  prior  decision,  in  a  different  cause,  in  favor  of 
the  same  title,  against  a  similar  objection.' 

68.  Bill  for  specm;  performance  of  a  sale  of  land  in  Cin- 
cinnati. The  complainant  had  purchased  the  lot,  and  had 
paid,  according  to  the  contract,  the  proportion  of  the  pur- 
chase money  payable  to  the  defendant.  By  the  contract,  a 
deed  with  general  warranty  was  to  have  been  given  by  the 
vendor  within  three  months,  and  a  mortgage  for  the  balance 
of  the  purchase-money  executed  by  the  purchaser.  This 
deed  was  never  given  or  offered.  The  purchaser  took  pos- 
session of  the  lot,  built  on  it,  and  sold  a  part  of  it.  A  sub- 
sequent agreement  was  made  with  the  vendor,  as  to  the  rate 
of  interest  to  be  paid  on  the  balance  of  the  purchase-money. 
The  purchase  was  made  in  1814,  and  the  interest  as  agreed 
upon  was  regularly  paid  until  1822,  when  it  was  withheld. 
In  1822,  the  vendor  brought  ejectment  for  the  property,  and 
obtained  possession  in  1824.  In  1819,  the  purchaser  was 
informed  that  one  C.  and  his  wife  had  a  claim  on  the  lot, 
which  was  deemed  valid  by  counsel ;  and  in  1823  a  suit  for 
recovery  of  the  lot  'was  instituted  by  C.  and  wife  against  the 
complainant,  the  defendant,  and  others,  which  was  pending 
until  after  1829.  In  1825,  this  bill  was  filed,  claiming  a 
conveyance  under  the  contract  of  1814,  on  payment  of  the 
balance  of  the  purchase-money  and  interest.  The  Circuit 
Court  decreed  a  conveyance  ;  and  the  decree  was  affirmed 
by  the  Supreme  Court.^ 

1  Biscoe  V.  Wilks,  3  Mer.  456.  ^  Taylor  v.  Lona:worthv.  U  Pet.  173. 


THE    LAW 


OF 


YENDORS  AND  PUECHASERS 


OF   REAL  PROPEETY. 


FRANCIS    HILLIARD, 

AUTHOR  OF  THE  LAW  OF  MORTGAGES,  ETC. 


IN    TWO    VOLUMES. 

VOL.  11. 


BOSTON: 
LITTLE,  BROWN   AND    COMPi,NY, 


M  DCCC  LVIII. 


Entered  according  to  Act  of  Congress,  in  the  year  1858, 

By  Francis  Hilliard, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


RIVERSIDE,    CAMBRIDGE: 
*    PRINTED   BY   H.  O.  HOUGHTON   AND   COMPANT. 


CONTENTS. 


CHAPTER  XXVI. 

Page 

General  Remedies  of  Vendor  and  Vendee  in  Law 
AND  Equity. — Mutuality  of  their  respective 
Rights  and  Claims. — Whether  the  Vendor  can 
Recover  the  Price  without  Tendering  a  Good 
Title 1-13 

CHAPTER    XXVn. 
Requisites   of  a  Valid  Title 14-38 

1.  In  what  a  valid  title  consists. 

2.  A  doubtful  title  is  insufficient. 
6.  Qualifications  of  the  rule. 

10.  Legal  or  equitable  title. 
13.  Title  by  rfeec?. 

19.  By  recovery. 

20.  By  destruction  of  contingent  remainders. 

21.  By  will,  and  other  assurances  connected  with  the  estates  of  persons  deceased. 
33.   Title  in  case  of  leasehold  interests  and  rents, 

41.  Title  as  affected  by  judgments,  &c. 

47.  Title  as  connected  with  bankruptcy. 

50.  Presumption  of  title. 

54 .  Title  by  limitation  and  lapse  of  time, 

57.  Title  derived  from  married  women  and  infants. 

63.  Miscellaneous  questions  of  title. — Time  allowed  for  perfecting  a  title. 


CHAPTER  XXVni. 

Independent   Covenants    in   a    Contract    of    Sale 
AND  Purchase. — Exceptions  to  the  Rule  of  JIe- 

QUIRING    THE    VENDOR    TO    CONVEY    A    GoOD    TiTLE     .      39-49 


IV  CONTENTS. 

CHAPTER    XXIX. 

Particular  Acts  tc  be  Done  by  the  Vendor,  in 
ORDER  TO  Enforce  the  Contract. — Tender  of 
Deed,  by  whom  to  be  made. — Offer  or  Readi- 
ness TO  Perform,  wnETHER  sufficient. — Allega- 
tions AND  Proof 50-60 

CHAPTER    XXX. 

Claim  of  the  Vendee,  in  Case  of  Defective  Title 
or  other  Breach  of  Contract. — Form  of  Action. 
— Tender  of  Purchase-Money  and  Demand  of 
Deed,  etc 61-70 


CHAPTER  XXXI. 

Notes  and  other  Securities,  given  for  the  Pur- 
chase Money  op  Land  ;  Actions  thereupon  and 
Defences  to  such  Actions  ;  Tender  of  Deed  ; 
Total  or  Partial  Failure  of  Title  ;  Covenants 
OF  Warranty 71-92 


CHAPTER   XXXII. 

Mutual   and    Conditional   Rights    of  Vendor   and 

Vendee,  when  Waived  or  Dispensed  with   .        .    93-96 

CHAPTER  XXXIII. 

Action  for  Use  and    Occupation,  between  Ven- 
dor AND  Vendee     .......       97-104^ 

CHAPTER   XXXIV. 

Measure  of  Damages  to  be  Recovered  by  Ven- 
dor AND  Vendee     .        .        .        .        .        .        .     105-118 


CONTENTS.  V 

CHAPTER  XXXV. 

Liquidated    Damages   and    Penalties  ;    Arbitra- 
tion ;  Damages  in  Equity 119-140 


CHAPTER  XXXVI. 
Interest,  Rents  and  Profits,  Improvements  .    141-159 

CHAPTER  XXXVII. 
Costs 160-179 

CHAPTER  XXXVIII. 

Parties  to  Actions 180-196 

CHAPTER   XXXIX. 
Pleading      197-203 

CHAPTER  XL. 
Limitation. — Lapse  op  Time 204-215 

CHAPTER    XLI. 
Sales  by  Order  of  Court 216-224 

CHAPTER    XLH. 
Remedies  in  Case  of  Fraud,  etc 225-237 


a 


* 


VI  CONTENTS. 

CHAPTER  XLIII. 
Miscellaneous  Points  of  Practice       .        .        .     238-243 

1.  Payment  of  purchase-money  into  Court,  and  the  disposal  thereof. 

6.  Security  for  purchase-money. 
10.  Injunctions. 
14.  Ne  exeat  regno. 
20.  Production  of  deeds,  &c. 
23.  Arbitration  and  award. 

Appendix     245-324 


ERRATA. 

Vol.  I.   p.    50,  11th  line  from  top,  for  rents  read  rests. 

109,13th         "         "       for  plaintiff  rend  defendant, 

112,16th         "         "       (or  purchase  read  sell. 

120,    3d  line  from  bottom,  dele  But. 

137,    2d         "  "         for  plaintiff  read  defendant. 

173,    6th  line  from  top  for  apparent  read  variant. 

228,19th         "         "      for  so  read  6«f. 

280,  11th  lino  from  bottom,  after  term  add^br  thirty-two  r/ears. 

Vol.  II.  p. 


438, 

11th       " 

"         for  plaintiff  read  defendant. 

59, 

16th       " 

"         for  2ith  read  Uth. 

65, 

10th       " 

"         for  latter  read  for?ner. 

188, 

2d        " 

"         dele  )iot. 

212. 

5th       " 

"         for  B.  read  H. 

228,  16th  line  from  top,  for  it  read  he. 

228,20th         "         "       for  plaintiff  read  defendant. 


INDEX  TO  CASES  CITED. 


Page 


Abel  V.  Heathcote 

18 

Abbott  V.  Allen 

80 

V.  Calton 

166 

173 

V.  Sworder 

176 

Ace.  Langridge  v.  Leroy 

229 

Adams  v.  Broke 

194 

V.  M'Millan 

106 

V.  Williams 

3 

Addies  Charity 

178 

Aiken  v.  Sanford 

8, 

9,  69 

Alley  V.  Deschamps 

208 

Allen  V.  Sanders 

42 

V.  Anderson 

109 

Alexander  v.  Crosbie 

28 

Alna  V.  Plummer 

107 

Alpass  I'.  Watkina 

19,  62 

Alsop  V.  Oxford 

174 

Ambrose  v.  Ambrose 

148 

157 

American,  &c  v.  Oakley 

218 

219 

Anderson  v.  Foulke      216, 

220, 

223, 
224 

Anonymous 

190, 

191 

Arms  V.  Ashley 

62 

Armingar  v.  Clarke 

306 

Aston  V.  Aston 

203 

Astley  V.  Weldon 

122 

Atkins  V.  Barrett 

46,47 

Attorney,  &c.  v.  Christ  Church 

145 

Ayer  v.  Hawkes 

103 

B. 

Bailey  v.  James 
Baikie  v.  Chandless 
Baker  v.  Morgan 


96 
237 
194 


Page 

Balch  V.  Smith  2 

Baldwin  r.  Munn  92 

Ball  V.  Cullimore  318 

Bamford  v.  Shuttleworth  195 

Bandon  v.  Becher  223 
Bank,  &c.  u.  Hagner             4,  93,  95 

Barbour  i'.  Nichols  321 

Barnes  v.  Baylies  67 

Barnwall  v.  Harris  30,  31 

Barnett  v.  Wheeler  27 

Baring  v.  Moore  220 

Bassein  v.  Serra  289 

Battle  V.  Rochester  65 

Baxter  v.  Lewis  51,  52 

Beall  V.  Lively  285 

Beale  v.  Seiveley  21 

Bean  v.  Flint  76 

Beckwith  v.  Marryman  32 

Beckerman  v.  Kuykendol  293 

Bedford  v.  Forbes  28 

Beecher  v.  Conradt  287 

Belchier  v.  Reynolds  134 

Bell  V.  Huggins  78 

Benson  v.  Boteler  102 

Benedict  v.  Lynch  204 

Bennet  College  v.  Carey  1 74 

Bennett  u.  Fowler  177 

Bickerton  v.  Burrell  195 

Birch  V.  Joy  156 

Bird  V.  Iligginson  269 

Birdsall  v.  Waldron  151 

Bishop  V.  Durham  178 
Bitnery.  Brough                      92,  113 

Blackwell  v.  Lawrence  109 

Blackmore  v.  Barker  323 

Blann  v.  Smith  68 
Blosse  V.  Clauimorris          15,  21,  162 

Blossom  V.  Knox  108 


Vlll 


INDEX   TO   CASES   CITED. 


Blount  i:  Blount 
Bhuuk'll  V.  Brottargb 
Boehani  v.  Wood 
Boone  v.  Eyre 
Bossier  v.  Niesly 
Boswell  I'.  ]\Iendham 
Bower  v.  Cooper 
Boyer  v.  Porter 
Boyman  v.  Gutch 
Boys  t'.  Ancell 
Brabston  v.  Gibson 
Bradshaw  v.  Bennett 
Brashicr  v.  Gratz 
Brawdy  r.  Brawdy 
Brereton  ;;.  Gamul 
Bree  v.  Holbeck 
Breithaupt  v.  Thurmond 
Brookes  v.  Wliitworth 
Brooks  V.  Day 

V.  Wheelock 
Brown  v.  Bellows 

V.  Frost 

V.  Gannon 

V.  Haff 

V.  Witter 

V.  Wood  worth 
Brockenbrough  v.  Blythe 
Brocas's  case 
Bryant  v.  Busk 

V.  Hambrick 
Bryan  v.  Whistler 
Buchanan  v.  Lorman 
Buck  V.  Pick  well 
Buckmaster  v.  Grundy 
Bull  V.  Allen 
Bullock  V.  Bullock 
Bumpus  V.  Plainer 
Burrough  v.  Skynner 
Burke  v.  Crosbie 
Burnell  v.  Brown 
Burton  v.  Johnson 
Butler  V.  Miller 

V.  O'Hear 
Byers  v.  Aiken 


C. 

Gallon  el  v.  Briggs 
Campbell  v.  Gittings 

V.  Home 
Canada  v.  Canada 
Cane  v.  Allen 

V.  Baldwin 
Cann  v.  Cann 
Cannell  v.  Mc  Clean 


I'llRC 

Page 

150,  151 

Carpenter  v.  Bailey 

47 

242,  243 

V.  Brown 

53 

241 

Carter  t>.  Harber 

81 

43 

Cartwright  v.  Gardner 

82 

290 

Cassauiajor  v.  Strode 

16 

21 

Chandler  v.  Duanc 

266 

239 

V.  Marsh 

80 

17 

Chaniplin  v.  Dotson 

84 

19 

ChaiJipcrnownc  v.  Brooke 

147 

124 

Chambers  v.  Tulane 

286 

84,85 

Chamberlain  v,  Lee 

86 

156 

Chase  v.  Weston 

87 

208 

Chesterman  v.  Gardner 

94 

272 

Childress  v.  Hurt 

323 

202 

Child  V.  Abingdon 

141 

63 

Clapham  v.  Shillito 

226 

5,  17,  314 

Clark  V.  Condit 

83 

182 

V.  Graham 

257 

237 

V.  Hardgrove 

285 

91 

V.  Locke  • 

292 

314 

V.  Redman 

48,  316 

224 

V.  Snelling 

88 

48 

Clarke  v.  Faux 

3 

241 

V.  Reins 

255 

31 

Clary  v.  Marshall 

311 

269 

Clayton  v.  Ashdown 

189,  307 

143 

Clinton  V.  M'Kenzie 

266 

43 

Clute  V.  Robinson 

47 

162 

Coburn  v.  Ware 

79 

112,  113 

ex  parte 

269 

269 

Cocker  v.  Cooper 

269 

239 

Coffey  V.  Coffey 

260,  323 

260 

Coffman  v.  Huck 

317 

113 

Collard  v.  Sampson 

22 

183 

CoUett  V.  Thompson 

201 

32 

Collier  v.  Coates 

66 

90 

CoUinge's  case 

170 

148 

Colmore  v,  Tindall 

16 

193 

Combs  V,  Fisher 

75 

141 

V.  Tarlton 

117 

73 

Condrey  v.  West 

82 

297 

Connelly  v.  Pierce 

.      53 

15 

Cook  V.  Stearns 

269 

55 

Cooper  V.  Denne 

15 

Cordor  v.  Morgan 

15 

Cordwell  v.  Mackrill 

242 

Corsbie  v.  Free 

289 

Coster  V.  Monroe 

89 

198 

Costigan  v.  Hastier 

296 

56 

Couch  V.  IngersoU 

3,12 

168 

Cowan  V.  Barret 

236 

4 

Cowell  V.  Lippitt 

324 

215 

Cowgill  V.  Oxmantown 

20 

19 

Cox  V.  Cox 

273 

29,  239 

V.  Chamberlain 

168 

113 

V.  King 

34 

INDEX   TO    CASES   CITED. 


IX 


Page 

Cox  V.  Strode 

109 

Coxc  V.  Halsted 

217,  218 

Craddoc'k  v.  Aldridge 

42 

Crawford  v.  Murphy 

17 

Creigh  v.  Shatto 

314 

Cripps  V.  Reade 

63 

Crisdee  v.  Bolton 

121 

Croome  v.  Lediard 

177 

Cuff  V.  Penn 

274 

CuUuui  V.  Bank 

147 

Culver  V.  Burgher 

287 

Cummings  v.  Arnold 

274 

Cunningham  v.  Morrell 

42 

V.  Fithian 

300 

Curtis  V.  Price 

224 

Cutts  V.  Salmon 

235 

D. 


Damon  v.  Granby  264 

Daniel  v.  Adams  192 

Darrington  v.  Borland  217 

Davidson  v.  Ernest  98 

Davis  V.  Hone  140 

V.  Jones  225 

V.  McVickers  76 

V.  Symonds  161 

V.  Tarwater  300,  301 

V.  Townsend  267 

Davies  v.  Penton  124 

D'Arras  v.  Keyser  280,  289 

Dean  v.  Dean  311 

Delassus  v.  Boston  288 

Denton  v.  Stewart  137,  139 

Denniston  v.  Coquillard  312 

Devling  v.  Little  286 

DeWitt  V.  Foxworthy  311 

Dias  V.  Glover  145 

Dick  V.  Cooper  259 

Dixon  V.  Haley  318 

V.  Oliver  291 

Dobell  V.  Stevens  228 

Doe  V.  Caperton  318 

V.  Chamberlaine  318 

V.  Edgar  215 

V.  Jackson  318 

Doggett  V.  Emerson  150 

Doremus  v.  Bond  79 

Doyley  v.  Powis  148 

Driggs  V.  D wight  110,116 

Dugan's  Heirs  v.  Colwell's  Heirs  273 

Duke,  &c.  V.  AVorthj-  195 

Duncan  v.  Lawrence  292 

V.  Tanner  113 

Dunn  V.  Ferguson  261 


Dunnica  v.  Sharp 
Dwight  V.  Cutler 
Dyer  v.  Hargrave 


Page 

109 

313,  318 

142 


E. 

Eames  v.  Savage 
Eakins  v.  Tresham 
Early  v.  Gassett 
Eastern,  &c.  v.  Hawkes 
Edwards  v.  Harvey 
Egremont  v.  Hamilton 
Elliot  V.  Edwards 
Elworthy  v.  Billing 
Emery  v.  Grocock 

V.  Wase 
Esdaile  v.  Stephenson 
Esmond  v.  Van  Benschoten 
Espy  V.  Anderson  48, 

Estes  V.  Browning 
Evans  v.  See 

V.  Kingsberry 
Everson  v.  Kirtland 
Everett  v.  Towns 
Ewer  V.  Myrick 
Eyston  v.  Symonds 
Eyton  V.  Dicken 


62 

231 

66 

282,  302 

161 

211 

25,  62 

218 

16,  30 

191,  255 

151 

278 

314,315 

313 

291 

256 

48 

306 

81 

36 

20 


Fagan  v.  Davison 
Farmers,  &c.  v.  Hunt 

V.  Martin 
Fashott  V.  Reed 
Feemster  v.  May 
Fenton  v.  Browne 
Fentiman  v.  Smith 
Ferguson  v.  Franklin 
Ferry  v.  Williams 
Fessenden  v.  Mussey 
Field  V.  Woodmancy 
Fielder  v.  Higginson 
Fisher  v.  Bridges 
V.  Salmon 
Fitzpatrick  v.  Featherstone 


Fletcher  v.  Button 

V.  Carter 
Fleetwood  v.  Green 
Fleming  v.  Harrison 

V.  Gilbert 
Flight  V.  BoUand 
Fludyer  v.  Cocker 
Flureau  v.  Thornhill 
Foot  V.  New  Haven,  &c. 


114 

49 

324 

155 
47,  75,  314 
239 
269 
218 

57 
262 

42 
163 
235 

76 

301 

111 

263 

165 

316 

94,  278 

189,  307 

141, 142 

111 

268 


46,  95 


INDEX   TO   CASES   CITED. 


Forbes  V.  Peacock 

Page 
164 

Fordyce  v.  Ford 

207,  210 

Fort  V.  Clarke 

24 

Foster  v.  M'Divit 

290 

V.  Jared 

81 

Fox  V.  Harding 

109 

Franklin  v.  Brownlow 

29 

Freer  v.  Hesse 

28 

Frcern  v.  Hesse 

172 

Frisbee  v.  HofTnaglc 

78 

Frobock  v.  Edwards 

169 

Frost  V.  Raymond 
Fuller  V.  Hubbard 

45 
65,316 

V.  Wilson 

228 

Funk  V.  M'Keoun 

157 

G. 


256 

302 

67 

96 

169 

21,  27,  95 

188 

7 

4 

83 

208 

293 

286 

44,  45,  46,  47 

136 


Gage  V.  Gage 

V.  The  Newmarket,  &c 
Gaither  v.  Hetrick 
Gale  V.  Nixon 
Galloway  v.  Barr 
Gans  V.  Renshaw 
Garbrand  v.  Allen 
Gardiner  v.  Corson 
Garley  v.  Price 
Garlock  v.  Lane 
Garnett  v.  Macon 
Gaule  V.  Bilyeau 
Gay  V.  Hancock 
Gazley  v.  Price 
Gervais  i>.  Edwards 
Gibson  v.  Patterson 
Gilman  v.  Hamilton 
Gill  V.  Bicknell 
Gillespie  v.  Battle 
Glascock  V.  Rand 
Glazebrook  v.  AVoodrow 
Glenn  v.  Thistle 
Goddard  v.  Mitchell 
Goodall  V.  Pickford 
Gooday  v.  The  C.  &  S.  V.  R.  R. 

Co. 
Goodisson  v.  Nunn 
Goodwin  V.  Clarke 

V.  Lynn 
Goodwyn  v.  Lister 
Gordon  v.  Sims 
Gorham  v.  Reeves 
Gosbell  V.  Archer 
Gould  V.  Okeden 

V.  Thompson 


206 

311 

262 

80 

82 

7 

88 

67 

220 


Grant  v.  Johnson 


252 

7 
240 
2 
190 
220,  221 
74,  75,  77 
118 
225 
98,  101,  318, 
320 
42 


Gray  v.  Handkinson 
Green  v.  Armstrong 
V.  Green 
V.  Lowes 
V.  McDonald 
V,  Pulsford 
Greene  v.  Reynolds 
Greenup  v.  Vernor 
Greenaway  v.  Adams 
Greenwood  v.  Ligon 
Greenleaf  v.  Cook 
Gregg  V.  Patterson 
Gregory  v.  Gregory 
Gregson  v.  Riddle 
Greville  v.  Da  Costa 
Griffin  v.  Reynolds 
Griffith  V.  Depew 
V.  Dobson 
Guest  V.  Hornfray 
Gwillim  V.  Stone 


H. 


Page 

•  78,  117 

265 

66,  70 

240 

84 

32 

10 

318 

138 

47,  314 

86 

290 

211 

205 

4,63 

108 

300 

290 

207 

136, 139 


Hall  V.  Betty 

11,314 

V.  Hardy                 1 92 

242,  255 

V.  Warren 

194 

Hallewell  v.  Morrell 

60 

Hammersley  v.  De  Biel 

249 

Hanson  v.  Lake 

169 

Hardingham  v.  Nicholls 

203 

Hardin  v.  Kretsinger 

287 

Harris  v.  Bell 

290 

V.  Tyson 

299 

Harrison  v.  Coppard 

162 

Harrington  v.  Barnes 

322 

V.  Wheeler 

207 

Hart  V.  Brand 

151,  163 

Hartley  v.  Pehall 

15 

Hargrave  v.  LeBreton 

233 

Hasbrouck  v.  Tappen 

96 

Hasker  v.  Sutton 

21 

Hatch  V.  Cobb 

283 

Hatton  V.  Gray 

306,  307 

Havens  v.  Bush 

42 

Hawkins  v.  Obeen 

190 

Hayes  v.  Camyll 

207 

V.  Richardson 

269 

Hays  V.  Hall 

91 

Head  v.  Egerton 

203 

Heard  v.  Wadham 

59 

Hearn  v.  Tomlin 

101 

Heaton  v.  Ferris 

266 

Hedges  v.  Kerr 

316 

Henry  v.  Raiman 

312 

Herndon  v.  Venable 

111 

INDEX   TO   CASES   CITED. 


XI 


Page 

Hewlins  v.  Shipman 

269 

Heyer  v.  Deaves 

219 

Hill  V.  Fiske 

283 

V.  Gray 

229 

V.  Hobert 

48,  68 

Hillary  v.  Waller 

30 

Hinder  v.  Streeter 

170 

Hitchcock  V.  Giddings 

•    78 

Hobson  V.  Bell 

16 

Hodges  V.  King 

120 

V.  Litchfield 

115,201 

Hodsdon  v.  Smith 

80 

Holman  v.  Loynes 

235,  236 

V.  Criswell 

310 

Hook  V.  Nebeker 

72 

Hopkins  V.  Lee 

112,  113 

V.  Grazebrook 

110, 115 

V.  Yowell 

113 

Hopson  V.  Trevor 

130 

Horn  V.  Denton 

323 

Houghtailing  v.  Houghtailing        269 

Hough  V.  Birge 

319 

Howard  v.  Hopkins 

127,  134 

V.  Shaw 

97,319 

V.  Witham 

87 

Howland  v.  Leach 

56,  94 

Hudson  V.  Swift 

68 

Hughes  V.  Garth 

202 

V.  Wynne 

179 

ex  parte, 

219 

Hull  V.  Vaughan      98,  100 

101,319 

Humber,  In  the  matter  of 

311 

Hundley  v.  Lyons 

147 

Hunt  V.  Livermore 

73,  74 

V.  Silk 

66 

V.  Turner 

273 

Hunter  v.  O'Neil 

314 

V.  Geridy 

301 

Hurd  V.  Denny 

284 

Hurst  V.  Means 

292,313 

Hussey  V.  Roquemore 

275,  281 

Icely  V.  Grew 

129 

Inge  V.  Birmingham 

27 

Ireson  v.  Pearman 

236 

Isler  V.  Egger 

80 

Jackson  v.  Roe  203 

Jamieson  v.  Millemann  268 

Janaway,  ex  parte  191 


Page 

January  t;.  Martin  151 

Jarmain  v.  Egelstone  1 79 

Jenkins  v.  Parkinson  139,  241 

Jenness  v.  Parker  87 

Jervoise  v.  Clarke  218 

V.  Northumberland      15,  23 

Johnson  v.  Beauchamp  319 

j;.  Evans  64 

V.  Johnson  64 

t'.  Jones  75 

V.  Wygant  287 

Johnston  v.  Beard  54 

Jones  V.  Barkley  56 

V.  Belt  92 

V.  Caswell  259 

V.  Gardner  10,  18,  46 

V.  Lewis  178 

V.  Mudd  151 

V.  Taylor  18,  35 

Judson  V.  Wass  4,  47,  287 


3,  13 

15,  16,  109 

110 

283 

155 

45,46 

166 

190 

18 

39 

110 

318 

100,  101, 319 

86 


K. 


Kane  v.  Hood 
Kelly  V.  Bradford 

V.  Dutch  Church 
Kempshall  v.  Stone 
Kester  v.  Rockel 
Ketchum  v.  Evertson 
King  V.  King 

V.  Turner 
Kingsley  v.  Young 
Kingston  v.  Preston 
Kjpney  v.  Watts 
Ivirk  V.  Taylor's  Heirs 
Kirtland  v.  Pounsett 
Knapp  V.  Lee 
Knight  V.  N,  E.  Worsted  Co.  41 

Knowles  v.  Shapleigh  99,  100 

Koger  V.  Lane  285 

Kurtz  V.  Cummings  262 


L. 


Laird  v.  Pim  58,  106 

Laight  V.  Pell  221 

Lakin  v.  Ames  264 

Lampman  v.  Cochran  125 

Lane  v.  Tidhall  286 

Langon  v.  Toogood  2 

Langridge  v.  Leroy  229 

Langstroth  v.  Toulmin  69 

Laurens  v.  Lucas  16 

Lawrenson  v.  Butler  307 


xu 


INDEX  TO   CASES   CITED. 


PftgO 

Lawrence  v.  Dole 

3,47 

Leohmerc  v.  Brasier 

222 

Lee  V.  Dean 

114  ! 

V.  Lee 

258  , 

Lepj^ett  V.  Edwards 

213 

Lewis  V.  Loxham 

168 

Ligjji'is  V.  Inge 

265,  269 

Lightburne  v.  Swift 

194 

Lincoln  v.  Arcedeckne 

34 

Little  V.  Paddleford 

48,314 

V.  Pearson 

104 

Livingston  c.  Peru 

184 

Lloyd  V.  Collett 

205 

V.  Jewell 

86 

V.  Johnes 

228 

London,  &c.  v.  Winter 

196 

Bridge,  kc. 

32 

Long  V.  Allen 

83 

V.  Collier 

20,  177 

%}.  Israel 

171 

Lord  V.  Lord 

196 

Low  V.  Marshall 

3 

Lowder  v.  Noding 

78 

Lowes  V.  Lush 

28 

Loyd  V.  Griffith 

23 

Lucas  V.  Heaton 

108 

Lumbard  v.  Aldrich 

256 

Lynch  v.  Baxter 

313 

Lyon  V.  Annable 

65 

ex  parte, 

219 

Lysney  v.  Selby 

225, 231 

M. 

Maberley  v.  Robins 

19,  1?8 

Mackrell  v.  Hunt 

217 

Madeira  v.  Hopkins 

217 

Madison  v.  Hopkins 

311 

Maling  V.  Hill 

30 

Manning  v.  Brown 

81 

Mannsell  v.  White 

249 

Martin  v.  McCormick 

63 

V.  Mitchell          191 

, 255,  307 

V.  Smith 

55,59 

Marlow  v.  Marlow 

3 

V.  Smith 

15,  161 

Margravine,  &c.  v.  Noel 

165 

Marshall  v.  Haney 

113 

Mason  v.  Chambers 

42 

Massie  v.  Watts 

310 

Mattock  V.  Kinglake 

58 

Mayo  V.  Pure  ell 

141, 145 

M'Cann  v.  Janes 

256 

M'Cracken  v.  Sanders 

157 

McConnel  v.  Dunlap 

114 

Page 

McComl)  V.  Wright  69 

M'Cullock  V.  Dawson  72,  73 

McDaniol  v.  Grace  295 

McDonald  ;;.  Fithiaa  300 

M'Kay  V.  Mclvin  141,146 

IM'Kcc  V.  Barley  187 

V.  Brandon  11 S 

M'Koy  I'.  Chiles  164 

M'Kennan  v.  Sterrett  153 

McKnight  v.  Dunlop  108 

McLane  v.  Rush  42 

McNamara  v.  Arthur  240 

V.  Williams  185 

McNair  y.  Schwartz  317 

M'Queen  v.  Farquhar  17 

Mead  v.  Fox  10,  95 

V.  Merritt  310 

Medlicott  v.  O'Donnell  210 

Metcalfe  v.  Dallam  1 7 

V.  Fowler  202 

Meynell  v.  Surtees  253,  254 

Midland,  &c.  v.  Westcomb  165 

Miles  V.  Stevens  226,  227 

V.  Williamson  298 

Mil  ward  v.  Thanet     •  207 

Miller  v.  Auburn  269 

V.  Argyle  286 

V.  Whittier  4 

Milldam,  &c.  v.  Hovey  41 

Millspaugh  v.  McBride  222 

Mitchell  V.  Bunch  310 

Mix  V.  Ellsworth  72 

Mobley  v.  Keys  75 

Moggridge  v.  Jones  83 

Mole  V.  Smith  193 

Molony  v.  Kernan  203 

Moneypenny  v.  Bristow  62 

Montgomery  v.  Dorion  256 

Monck  V.  Huskisson  151 

Moore  v.  Rawson  269 

Morgan  v.  Morgan  2,  184 
V.  Scott              281,  293,  299 

V.  Smith  79 

Morton  v.  Dean  262 

V.  Ridge  way  157,  158 

Morris  v.  Kearsley  24 

V.  McNeil  241 

Morrison  v.  Caldwell  91 

V.  Jewell  83 

Morse  v.  Elmendorf  284 

Moseley  v.  Hide  33 

Mumford  v.  Whitney  267,  269 

Mundy  v.  Culver  122 

Murray  v.  Currie  107 

Murphy  v.  McVicker  44 

V.  Officer  301 


INDEX   TO   CASES   CITED. 


XUl 


Myers  v.  Aikman 


N. 

Natchez  v.  Miner 
National,  &c.  v.  Loomis 
Nelson  v.  Bridge 
Nelthorpe  v.  Pennyman 
Newton  v.  Bronson 
Newall  V.  Smith 
Newham  v.  May 
Newsome  c.  Graham 
Newby  v.  Paynter 
Nolan  d  V.  Pope 
Nicloson  V.  Wordsworth 
Nixon  V.  Hyserott 
Nurse  v.  Barns 


O. 

Oatman  v.  Walker 
Orme  v.  Broughton 
Oldfield  V.  Stevenson 
Oliver  v.  Hallam 
Onslow  V.  Londesborough 
Osbaldeston  v.  Askew 
Osgood  V.  Dewey 
Ottenhouse  v.  Burleson 
Otis  V.  Hall 
Ovey  V.  Leighton 
Owings  V.  Baldwin 
Owen  V.  Davies 
Outram  v.  Round 


Page  V.  Adam 

V.  Hughes 
Paine  v.  Meller 
Palmer  v.  Temple 
Parker  v.  Parmele 
Parham  v.  Randolph 
Partridge  v.  Usborne 
Patton  V.  England 
Paton  V.  Rogers 
Paterson  v.  Long 
Patterson  v.  Martz 
Patching  v.  Dubbins 
Pearce  v.  Pearce 
Peers  v.  Barnett 
Pennington  v.  Hanley 
Perry  v.  Rice 

VOL.  11. 


Page 

Piige 

75 

Peterson  v.  Ayre 

108 

Peters  v.  McKeon 

109 

Phillips  V.  Fielding 

6,  199 

200 

V.  Longstreth 

275 

Phippen  v.  Stickney 

133 

90 

Pierrepont  v.  Barnard 

265 

220 

Pilmore  v.  Hood 

229 

140 

Pincke  v.  Curteis 

42,  147 

207 

196 

Pipkin  V.  James 

293 

257,  309 

Pitt  V.  Donovan 

234 

170 

Pitman  v.  Poor 

267 

284 

Pitcher  v.  Livingston 

110 

62 

Pomeroy  v.  Drury 

47 

314 

26 

Poole  V.  Hill 

52 

166 

Poorman  v.  Kilgore 

270 

165 

Popple  V.  Henson 

164 

45 

Porter  v.  Dougherty 

277 

110 

V.  Noyes 

48 

Portarlington  v.  Soulby 

203 

Powell  V.  Powell 

32 

,  193 

V.  Rust 

266 

Preble  v.  Baldwin 

107 

107 

Pratt  V.  Law 

4 

117 

Price  V.  Ayers 

84 

9a 

V.  Case 

269 

145 

V.  Price 

220 

38 

V.  Strange 

15 

28 

V.  Williams 

60 

319 

Pringle  v.  Witten 

117 

273 

Purcell  V.  McCleary 

37 

266 

'Purvis  V.  Rayer 

314 

203 

Pyles  V.  Reeve 

17 

314 

194, 306 

192 

R. 

• 

Ragan  v.  Gaither 

5,18 

215 

Ramsbottom  v.  Gosdon 

178 

Randall  v.  Everest 

122 

123 

24 

Ralston  v.  IVIiller 

285 

215 

Rathbone  v.  M'Connell 

265 

208 

Rawson  v.  Johnson 

198 

131 

Rawlins  v.  Timberlake 

91 

6,46,47 

Reyner  v.  Julian 

182, 

183 

89,  90 

Reeves  v.  Dickey 

37 

221 

Reilly  v.  Jones 

121 

88 

Remington  v.  Deverall 

239 

150 

Retallick  v.  Hawkes 

200 

183 

Reynolds  v.  Nelson. 

140, 

301 

210 

Rich  V.  Johnson 

108 

240 

Richardson  v.  Gosser 

254 

221 

Rigby  V.  Macnamara 

224 

285 

Right  V.  Beard 

318 

316 

Roake  v.  Kidd 

15,  21 

71 

Robb  V.  Montgomery 

287 

XIV 


INDEX   TO   CASES   CITED. 


Robinson  v.  Heard 

V.  McDonald 
V.  Snyder 
Robinett  v.  Preston 
Roberts  v.  Marchant 
V.  Rlassey 
V.  Rowlands 
Robertson  v.  Great  Western, 

V.  MeDougall 
Rogers  v.  Saunders 

V.  Wiggs 
Rome  V.  Young 
Ross  V.  Boards 

V.  Ross 
Rose  V.  Calland 
Roswell  V.  Vaughan 
Rucker  v.  Lowther 
Ruggles  V.  Nantucket 
Rushton  V.  Craven 
Rutledge  v.  Lawrence 
I'.  Smith 


Sainsbury  v.  Jones 
Savile  v.  Savile 
Salmon  v.  Hoffman 
Salisbury  v.  Hatcher 
Sansom  v.  Rhodes 
Sargent  v.  Adams 
Savage  v.  Taylor 
Sayer  v.  Harlem 
Scoones  v.  Morrell 
Scott  V.  Nixon 

V.  Thorp 
Seaton  v.  Booth 
Seabury  v.  Stewart 
Seaman  v.  Vawdrey 
Searcy  v.  Reardon 
Sedgwick  v.  Hargrave 
Seers  v.  Fowler 
Selden  v.  James 
Senter  v.  Drake 
Seton  V.  Slade 
Seward  v.  Willock 
Seymour  v.  Delancey 
V.  Nosworth 
Shannon  v.  Bradstreet 
Shapland  v.  Smith 
Sharin  v.  Tickling 
Sharp  V.  Adcock 
Shattuck  V.  Cassidy 
Shaw  V.  Rowley 

V.  Wilkins 
Sherwin  v.  Shakspeare 


I'liKe 

Page 

107 

Sheffield  v.  Mulgrave 

22 

823 

Sheets  c.  Andrews 

109 

293 

Sheppard  r.  Doolan 

18 

18G 

Shine  v.  dough 

157 

,  158 

185 

Shirley  v.  Shirley 

96 

157 

Shore  v.  Collett 

241 

201 

Shute  V.  Taylor 

126 

,  &c 

.  186 

Sidebotham  v.  Barrington 

176 

232 

Siter's  A  )peal 

252 

281 

210 

Sims  V.  Hutchins 

66 

102 

Simpson  r.  Gutteridge 

30 

224 

V.  Sadd 

295 

242 

Slack  V.  I\Ic  Lagan 

89 

193 

Slingluff  V.  Eckel 

258 

15 

170 

Sloper  V.  Fish 

16 

,  162 

232 

Small  V.  Atwood 

187 

231 

816 

Smith  V.  Burnam 

207 

270 

V.  Babcock 

230 

15 

V.  B.  &  S.  Gas  Light  Co. 

266 

113 

V.  Death 

16 

151 

V.  Eldridge 
V.  Hibbard 
V.  Henry 

101 

190 

73 

V.  Jackson 

147 

148 

V.  Robertson 

18 

138 

183 

V.  Spooner 

238 

129 

V,  Stewart 

102 

320 

313 

V.  Wooding 

97 

320 

194 

Society  for  Prop,  the  Gospel  v. 

36 

Young 

256 

93 

Southerin  v.  Mendum 

256 

231 

Somerville  v.  Trueman 

215 

250 

282 

Southby  V.  Hutt 

35 

174 

Spurrier  v.  Hancock 

207 

210 

31 

V.  Elderton 

178 

172 

Spiller  V.  Westlake 

80 

188 

Sperling  v.  Trevor 

23 

97 

Staats  V.  Ten  Eyck 

HO 

33 

Staines  v.  Morris 

168 

157 

Standley  v.  Hemmington 

60 

192 

Staudifer  v.  Davis 

54 

42 

Stapilton  v.  Stapilton 

307 

146 

Stajjylton  v.  Scott 

15 

314 

Stead  V.  Nelson 

192 

205 

207 

Stearns  v.  Hall 

275 

62 

Stevens  v.  Hunt 

46 

280 

304 

Stevenson  v.  Maxwell 

143, 

155 

202 

Stephenson  v.  Harrison 

113 

189 

193 

Stephens  v.  Medina 

52 

161 

Stedwell  v.  Anderson 

157 

314 

Steinhauer  v.  Witman  . 

89 

21 

Stiles  V.  Sherman 

78 

810 

Stingle  V.  Hawkins 

72 

35 

Story  V.  Windsor 

203 

113 

Stone  V.  Sprague           278, 

287, 

818 

172 

V.  Stevens 

47 

INDEX   TO    CASES    CITED. 


XV 


Page 

Stoutenburgh  v.  Tompkins 

306 

Stowell  «'.  Robinson 

35 

Stout  ('.  Jackson 

108 

Streeter  v.  Henley 

88 

Stuart  V.  The  L.  N. 

W.  R.  R. 

Co. 

252 

V.  The  London 

&c. 

SO  2 

Suydam  v.  Jones 

89 

Siitphen  V.  Fowler 

166 

310 

Swan  V.  Cox 

76 

V.  Drury 

9 

Sweitzer  v.  Hummell 

54 

Sweeney  v.  Sampson 

76 

Sweetland  v.  Smith 

152 

Squire  v.  Tod 

70 

200 

T. 


Tallmade  v.  Wallis 

88 

Talbott  V.  Bell 

311 

Tarwater  v.  Davis 

68 

Tasker  v.  Small 

181,  186 

Taylor  v.  Brown 

165 

V.  Longworth 

68 

V.  Waters 

269 

V.  Perry 

73 

Terry  v.  Duntze 

42 

Tewksbury  v.  Laifan 

49 

Thayer  v.  Turner 

198 

Tharin  v.  Fickling 

2,5 

The  State  v.  Paup  et  al  295 

The  Bang  v.  The  Inhabitants,  &c.  269 

I'.  Inhab.  of  Horndon  269 

V.  Hungerford  134 

The  Mayor,  &c.  of  New  York  v. 

Butler  278 

Thompson  v.  Davis  259 

u.  Mason  157 

V.  Guthrie  110 

Thornton  v.  Wyman  198 

Thomas  v.  Powell  238 

Thrasher  v.  Pinckard  46 

Threlkeld  v.  Fitzhugh  108 

Tillotson  V.  Grapes  75 

Tinney  v.  Ashley  44,  52,  69,  69,  198 

Tindall  v.  Conover  48 

Tison  V.  Smith  35,  77 

Todd  V.  Caldwell  91 

V.  Hoggart  69 

V.  Gee  138 

V.  Simmons  2 

Townsend  v.  Champernowne        163 

Townshend  v.  Townshend  144 

Towne  v.  D'Heinrick  101 

Traver  v.  Halstead  48 


Page 

Trask  v.  Vinson  82 

Trent  v.  Hanning  15 

Tremaine  y.  Lining  •        316 

Trevanian  v.  Mosse  202 

Tripp  V.  Cook  223 

Troughton  i'.  Troughton  8 

Tuthill  V.  Rogers  31 

Tunnov.  Flood  217 

Tyler  v.  Young  77 

Tylee  v.  Webb  236 

Tyree  v.  Williams  29 


Vanada's  Heirs  ii.  Hopkins  316 

Vancouver  v.  Bliss  95,  160,  161,  166 

Vanderhewill  v.  Storrs  320 

Van  Eps  i'.  Schenectady  45,  47 

Van  Schaick  v.  Winne  199 

Van  Waggoner  v.  M'Ewen  89 

Veeder  v.  Fonda  218,  221 

Veron  v.  Stephens  206 

Viele  V.  The  Troy,  &c.  279,  304 


W. 

Walker  v.  Barnes  239 

V.  Constable  117,  293 

V.  Moore  116 

Wall  V.  Northumberland  182 

.Walworth  u.  Anderson  171 

Walling  V.  Kinnard  117 

Wagner  v.  Cohen  217 

Wakeman  v.  Rutland  185 

Ward  V.  Arredondo  810 

Warner  v.  Bacon  117 

V.  Hatfield  73 

Warren  i'.  Richardson  295 

Warneford  v.  Thompson  23 

Watts  V.  Kenney  256 

V.  Sheppard  276 

V.  Waddle  157 

Watson  V.  Marston  296 

V.  Reynolds  233 

"Waters  v.  Travis  212 

Webb  V.  Austin  35 

V.  Bettel  51 

V.  The  L.  &  P.  Railway 

Co.  251 
V.  The  Direct  London,  &c.  302 

Webster  v.  Doran  128 

Wedge  wood  v.  Adams  297 

Weddall  v.  Nixon  23 

"Wentworth  v.  Goodwin  87 


XVI 


INDEX   TO    CASES  CITED. 


Wells  r.  Wells 
West  V.  Emiiions 
Wcsterif  r.  I'errin 
Wliitc  V.  Foljiunbc 

('.  Livingston 
Whiteside  v.  Jennings 
Whitchurst  v.  Boyd 
Whitney  v.  New  Haven 
Whituiel  V.  Farrel 
Wiggins  r.  MeGimpsey 
Wilson  ';.  Allen 

V.  Clapham 

V.  Kearse 

V.  Wilson 
Wilcox  V.  Bellaers 
Wilde  V.  Fort 
Williams  r.  Edwards 

V.  Healey 
Winton  v.  Brockwell 
Winter  v.  Broderick 

V.  D'Evneux 
Winterbottom  v.  Ingham 


92 

WInne  v.  Reynolds 

.164 

5G,  19  7 

WiswiiU  0.  AlcGown 

278 

1G9 

Witiierspoon  c.  Anderson 

159 

170 

Witters  v.  Baird 

315 

317 

Wood  V.  Leadbitter 

269 

113 

V.  Mann 

222 

275 

252 
192 

V.  Manly 
V.  Perry 
0.  White 

266 
182 
181 

•5,  84,  85 

Woodman  v.  Freeman 

117 

163 

Woodark  v.  Bennet 

284 

169 

Worrall  v.  Jacobs 

193 

189 

Wortliington  v.  Curd 

293 

25 

Wright  V.  Beard 

318 

171 

Wynne  v.  Grifiith                   180 

238 

34 

Wyville  v.  Bishop  of  Exeter 

167 

166 

287 

269 

Y. 

268 

192 

York  V.  Gregg 

313 

103,  319, 

Young  V.  Lillard 

3 

320 

V.  McClung 

170 

THE    LAW 


OF 


VENDORS    AND    PURCHASERS 


CHAPTER    XXVI. 

GENERAL     REMEDIES     OF     VENDOR     AND     VENDEE     IN    LAW     AND 

EQUITY. MUTUALITY      OF      THEIR      RESPECTIVE     RIGHTS     AND 

CLAIMS. — WHETHER    THE     VENDOR    CAN    RECOVER    THE    PRICE 
WITHOUT   TENDERING   A    GOOD   TITLE. 

1.  Having  now  completed  the  consideration  of  the  reme- 
dies between  vendors  and  purchasers  of  real  property  pecu- 
liar to  Courts  of  Equity,  we  proceed  to  speak  of  the  general 
grounds  of  action  and  defence  in  relation  to  contracts  of 
sale  and  purchase,  and  the  course  of  proceeding  in  the  pro- 
gress of  suits  brought  to  enforce  them,  on  the  one  side  and 
the  other.  The  remark  already  made  may  be  here  repeated, 
that  many  of  the  rules  and  principles,  which  we  shall  now 
have  occasion  to  state  in  detail,  have  of  necessity  been  more 
cursorily  suggested  in  the  preceding  pages  of  this  work. 
This  remark  is  peculiarly  applicable  to  the  subject  of  title, 
which  was  treated  at  some  length  in  immediate  connection 
with  the  contract  of  sale  and  purchase,  (Chap.  12,)  but  has 
a  still  more  intimate  relation  to  the  remedy  provided  by  law 
for  breach  of  that  contract. 

VOL.  II.  1 


2  LAW   OF   VENDORS   AND   PURCHASERS.  [CH.  XXVI. 

2.  The  general  principle — equally  a  rule  of  law,  equity, 
and  moral  justice — has  been  already  stated,  (Chap.  12,)  that 
the  rights  and  duties  of  the  parties  to  a  sale  and  purchase 
of  real  property  are  mutual  or  reciprocal;  that  the  vendor 
cannot  claim  the  price  without  having  conveyed,  or  offered 
to  convey  the  land ;  nor  the  vendee  the  land  without  having 
paid  or  offered  to  pay  the  price,  [a)  Upon  the  same  general 
grounds,  in  more  immediate  connection  with  the  remedy,  it 
is  said  to  be  a  universal  rule  of  equity,  that  he  who  asks  for 
a  specific  performance  must  be  himself  in  a  condition  to 
perform.  Therefore  the  vendor,  being  unable  to  make  a 
title  free  from  incumbrances,  is  not  entitled  to  a  decree  for 
specific  performance.^  So,  under  a  contract  to  purchase 
land,  generally,  good  and  sufficient  titles  must  be  delivered 
or  tendered  before  the  purchase-money  can  be  recovered.^ 
So  a  covenant  by  the  vendee  to  pay,  and  of  the  vendor  to 
convey  upon  payment,  are  dependent  covenants  ;  {b)  and  an 

1  Morgan  v.  Morgan,  2  Wheat.  290,        ^  Tharin  v.  Pickling,  2  Rich.  3*1. 
299. 


(a)  The  same  general  principle  has  been  applied,  in  case  of  a  contract 
relating  to  real  and  personal  property,  to  the  title  of  the  latter,  and  as 
between  the  vendee  and  a  third  person.  Thus  the  plaintiff  let  a  liouse  and 
the  furniture  therein  for  six  months.  During  that  period,  the  plaintiff  and 
the  lessee  entered  into  a  written  contract,  whereby  the  plaintiff  agreed  to 
sell  the  house  and  furniture  to  the  lessee,  the  purchase-money  to  be  paid  on 
completion  of  a  good  title  by  the  plaintiff.  Before  completion  of  a  good 
title,  the  contract  was  rescinded  by  consent  of  both  parties.  Held,  the 
furniture  never  vested  in  the  lessee,  and  therefore  could  not  be  taken  under 
an  execution  against  him.     Lanyon  v.  Toogood,  13  Mees.  &  Wels.  27. 

(&)  The  dependence  or  independence  of  covenants  is  to  be  collected 
from  the  evident  sense  and  meaning  of  the  parties.  Balch  v.  Smith,  12  N. 
H.  444.  And  this  intention  is  to  be  sought  for,  rather  in  the  order  of  time 
in  which  the  acts  are  to  be  done,  than  from  the  structure  of  rfie  instrument. 
Goodwin  V.  Lynn,  4  Wash.  C.  C.  714. 

Though  dependent  in  form,  the  covenants  will  be  construed  as  independ- 
ent, when  necessary  to  effect  justice.  Todd  v.  Simmons,  2  Graft.  167. 
Hence  a  party,  having  covenanted  to  do  two  things,  one  of  which  he  has 
done,  may  maintain  an  action  for  the  part  done,  as  upon  an  independent 
covenant.     But,  if  the  failure  of  the  plaintifi"  to  perform  any  of  his  cov- 


en.  XXVI.]        GENERAL   REMEDIES,   ETC. — MUTUALITY.  3 

action  to  compel  payment  cannot  be  maintained,  without 
proof  of  a  previous  tender  of  a  conveyance.'  So,  if  one 
party  covenants  to  convey  land  to  the  other  within  one  year, 
at  an  agreed  price  per  acre  ;  and  the  other  to  pay  the  same 
price  within  the  same  time ;  the  covenants  are  dependent, 
and  neither  party  can  maintain  an  action  against  the  other, 
without  proof  that  he  was  ready  and  willing  to  perform  on 
his  part  at  the  proper  time.^  So  it  is  held,  that  a  purchaser 
discovering  an  incumbrance  may  retain  so  much  of  the 
price.3  So  a  purchaser  (though  with  warranty)  will  not  be 
compelled  to  receive  a  title  and  pay  the  purchase-money, 
if  an  apparently  valid  adverse  title  has  been  asserted ;  and, 
if  there  is  no  probability  that  the  claim  purchased  will  pre- 
vail, equity  will  enjoin  the  payment  of  the  purchase-money, 
and  dissolve  the  contract.*  So,  where  a  purchaser  stipulates 
to  pay  the  residue  of  the  purchase-money  on  a  day  speci- 
fied, upon  the  vendor's  making  a  good  title,  or,  otherwise, 
if  such  title  should  not  be  completed,  upon  his  executing  a 
bond  to  complete  such  title,  and  to  convey  the  estate  as 
soon  as  the  same  could  be  completed ;  the  vendor  is  bound 
to  show  a  good  title ;  and,  till  a  good  title  is  shown,  the 
purchaser,  though  he  had  entered  into  possession,  is  not 
bound  to  pay  the  purchase-money.^  So,  where  the  legal 
title  cannot  be  conveyed,  and  the  vendee  must  resort  to  a 
Court  of  Equity  to  establish  his  title,  notwithstanding  a 
conveyance  of  all  the  right  of  the  vendor  to  him,  the  Court 

1  Adams  v.  Williams,  2  W.&S.  227.  *  Young  v.  Lillard,    1    Marsh.  482; 

'^  Low  V.Marshall,    17   Maine,   232;  Marlow  f.  Marlow.  2  P.  Wms.  199. 

Lawrence  v.  Dole,  11  Verm.  549.  ^  Clarke  w.  Faux,  3  Russ.  320. 
3  Troughton  v.  Troughton,  1  Ves.  88. 

enants  has  been  injurious  to  the  defendant,  the  tatter  may  set  up  this  injury 
as  a  defence  ^ro  ianto.     Ibid.     (See  Chap.  28.) 

In  a  contract  between  parties,  relative  to  the  same  subject,  some  stipula- 
tions may  be  mutual  and  independent,  and  others  dependent  and  mutually 
conditional.  Thus  the  plaintiff,  without  having  tendered  performance  on 
his  part,  recovered  on  a  breach  of  one  covenant,  because  it  was  independent, 
and  failed  on  the  other  because  it  was  dependent.  Kane  v.  Hood,  13  Pick. 
282  ;   Couch  v.  Ingersoll,  2  Pick.  292. 


4  LAW    OP   VENDORS   AND   PURCHASERS.  [ciI.  XXVI. 

will  not  compel  him  to  pay  tlu;  purchase-money,  and  thus 
take  a  laivsuit  instead  of  the  land.^  So,  where  a  vendor 
covenants  to  give  a  deed  on  a  certain  day,  and  the  purchaser 
covenants  on  the  same  day  to  pay  part  of  the  consideration, 
and  give  security  for  the  residue,  the  covenants  are  depend- 
ent, and  neither  party  can  maintain  an  action,  without  aver- 
ring performance,  or  readiness  to  perform,  on  his  part.'-^  So, 
where  a  sale  has  been  in  part  executed  by  a  conveyance  of 
part  of  the  land,  and  the  vendor  is  unable  to  convey  the 
residue ;  equity  will  decree  repayment  of  a  proportionate 
part  of  the  purchase-money,  with  interest.'^ 

3.  Upon  the  same  principle,  where  a  party  agrees  to  con- 
vey land,  upon  performance  by  the  purchaser  of  certain 
conditions,  and  designedly  incapacitates  himself  to  convey, 
the  purchaser  is  discharged  from  the  conditions.*  And,  if  a 
party  who  has  agreed  to  sell  an  estate  is  afterwards  disabled 
from  doing  so,  the  vendee  may  recover  the  money  deposited 
in  an  action  for  money  had  and  received,  although  the  con- 
tract for  the  sale  be  under  seal.^  So  a  contract,  that  one 
party  shall  remain  with  the  other  and  carry  on  his  farm  until 
the  decease  of  the  latter,  and  shall  then  receive  the  farm  in 
compensation  of  his  services,  is  broken  by  a  sale  of  the  farm 
or  a  part  of  it  by  the  owner,  although  for  the  purpose  of 
paying  an  antecedent  debt ;  and,  the  special  contract  being 
at  an  end,  the  party  who  has  rendered  the  service  may 
recover  the  value  of  it  in  an  action  upon  the  common 
counts.^ 

4.  Action  on  a  contract,  to  pay  the  plaintiff  for  certain 
land  $1,500,  "payments  as  follows:  $200  cash;  $300  in 
negro  property;  the  balance  of  $1,000  to  be  paid  in  one, 
two,  and  three  years,  bearing  interest  from  the  time  of  pos- 
session, and  giving  approved  personal  security  with  a  mort- 
gage on  the  premises,  to  secure  the  payment  of  the  $1,000." 

1  Bank,  &c.  v.  Hagner,  1  Pet.  455.  ^  Grevillc  v.  Da  Costa,  Peake's  Add. 

*  Garley  v.  Price,  16  Johns.  267.  Ca.  113  ;  Judson  w.Wass,  1 1  Johns.  525. 
^  Pratt  V.  Law,  9  Cranch,  494.  ^  Canada  v.  Canada,  6  Cush.  15. 

*  Miller  v.  Whittier,  32  Maine,  203. 


en.  XXVt.]        GENERAL   REMEDIES,    ETC. — MUTUALITY.  5 

Shortly  after  the  contract  was  executed,  the  defendant  en- 
tered on  the  land,  and  cultivated  it  for  one  year.  The  action 
was  for  the  first  payment  of  ^500.  Held,  the  plaintiff  could 
not  recover,  without  proof  that  he  had  executed  and  ten- 
dered titles  to  the  defendant,  before  action  commenced.^ 

5.  The  defendant,  on  the  6th  of  December,  1841,  agreed 
in  writing  to  purchase  from  the  plaintiff  his  farm,  called  the 
cottage  portion  of  Magnolia  Farm,  for  $3,000,  to  be  paid  as 
follows:  $1,500  on  the  1st  of  January,  1842;  $1,000  in 
twelve  months,  and  $500  in  eighteen  months  after  that  date ; 
each  of  the  two  latter  sums  to  draw  interest  from  the  above 
stated  periods,  or  date  of  the  bond.  At  the  time  the  agree- 
ment was  made  the  premises  were  under  mortgage,  and,  in 
May,  1842,  were  sold  under  a  decree  of  foreclosure,  pro- 
nounced against  the  plaintiff  in  January,  1842.  Held,  the 
plaintiff,  in  order  to  recover  on  the  contract,  should  have 
removed  the  incumbrance  and  tendered  to  the  defendant 
titles  to  the  farm.  Also,  that  the  plaintiff  could  not  show 
by  parol,  that  the  defendant  knew  of  the  mortgage,  and  that 
the  agreement  was  entered  into  with  a  view  to  raise  money 
to  pay  it  off.2 

6.  The  plaintiff  sold  to  the  defendant  a  lot  for  $700, 
agreed  to  make  a  pavement  in  front  of  the  property,  and  to 
clear  all  incumbrances ;  and  was  to  receive  the  $700,  on 
giving  a  good  and  sufficient  deed.  The  contract  was  dated 
17th  June,  1836,  and  the  defendant  was  to  receive  the  rent 
from  July  1st ;  but,  if  the  deed  was  not  given  by  that  day, 
the  plaintiff  was  to  receive  the  rent  until  he  gave  a  good 
deed.  Held,  the  payment  and  conveyance  were  to  be  con- 
current; and  a  declaration,  alleging  that  the  plaintiff  was  at 
all  times  ready  to  execute,  and  did  execute  and*  offer  to 
deliver,  a  good  and  sufficient  deed,  before  the  action  was 
instituted,  was,  after  verdict,  equivalent  to  an  allegation  of 
seizin  in  the  plaintiff.^ 

1  Breithaupt  u.  Thurmond,  3  Rich.  ^  Ragan  w.  Gaither,  1 1  Gill.  &  Johns. 
216.  472. 

2  Tharin  o.  Fickling,  2  Rich.  361. 

1  * 


6  LAW    OF   VENDORS    AND   PURCHASERS.  [cil.  XXVI, 

7.  By  the  conditions  of  a  sale  by  auction  of  a  copyhold, 
it  was  stipulated  that  the  purchaser  should  pay  down  a 
deposit,  and  sign  an  agreement  for  payment  of  the  remain- 
der of  the  purchase-money  at  a  certain  time,  on  having  a 
good  title,  and  that  he  should  have  a  proper  surrender  of  the 
estate,  on  such  payment.  Held,  in  order  to  maintain  an 
action,  the  seller  must  not  only  allege  that  he  had  been 
always  ready  and  willing,  and  frequently  offered,  to  make  a 
good  title  and  a  proper  surrender  on  payment  of  the  pur- 
chase money  ;  but  also  actually  made  a  good  title,  'and  sur- 
rendered the  estate  to  the  purchaser,  or  a  tender  and  refusal ; 
and  also  what  title  the  seller  had.^ 

8.  By  an  agreement  under  seal  for  sale  and  purchase  of 
land,  the  defendant  covenanted  to  pay  $250  on  a  certain 
day,  and  the  plaintiff  covenanted,  that,  upon  performance  of 
the  covenant  of  the  defendant,  he  would  "  execute  to  him, 
his  heirs  and  assigns,  a  good  warrantee  deed  of  conveyance." 
The  declaration  alleged,  that  the  plaintiff  was,  and  had  been 
at  all  times,  ready  and  willing,  on  payment  of  the  $250,  &c., 
to  execute  a  good  warrantee  deed  of  conveyance,  &c.,  but 
that  the  defendant  did  not  pay  the  $250,  &c.  Pleas,  that  the 
plaintiff  was  not  seized,  &c.,  and  had  no  title ;  and  that  the 
plaintifT  did  not  on  the  day  appointed,  nor  at  any  time 
since,  tender  or  offer  to  execute  a  good  warrantee  deed  of 
conveyance.  Held,  the  covenants  were  dependent ;  that  the 
words,  "  a  good  warrantee  deed  of  conveyance,"  referred  to 
the  instrument  of  conveyance  only,  and  not  to  the  title ; 
that  the  first  plea  was  not  sufficient,  because  to  an  action  on 
a  deed  or  specialty,  mere  failure  of  consideration  is  no  de- 
fence at  law.  But  that  the  second  plea  was  good,  for  the 
vendor  cannot  maintain  an  action  for  the  purchase-money, 
without  having  executed  or  actually  tendered  a  conveyance.^ 

9.  The  plaintiff  agreed  to  sell  the  defendant  his  estate 
for  a  certain  sum  before  a  particular  day,  in  consideration 
whereof  the  defendant  agreed  to  pay  that  surri  on  the  day, 

'  Phillips  V.  Fielding,  2  H.  Bl.  123.  '^  Parker  v.  Parmele,  20  Johns.  130. 


CH.  XXVI.]        GENERAL   REMEDIES,   ETC. — MUTUALITY.  7 

and,  on  failure,  to  pay  <£21.  Held,  the  covenants  were  de- 
pendent ;  and  the  plaintiff  could  not  recover  the  .£21,  with- 
out showing  a  conveyance  on  his  part,  or  a  tender  of  one.^ 

10.  The  plaintiff  covenanted  to  sell  to  the  defendant  a 
school-house,  &c.,  and  to  convey  the  same  to  him  on  or  be- 
fore the  1st  of  August,  and  to  deliver  possession  in  June, 
and,  in  consideration  thereof,  the  defendant  covenanted  to 
pay  the  plaintiff  <£120,  on  or  before  the  1st  of  August,  1797. 
Held,  the  covenants  were  dependent  covenants ;  and  the 
plaintiff  could  not  maintain  an  action  for  the  ,£120,  without 
averring  that  he  had  conveyed  or  tendered  a  conveyance.^ 

11.  The  defendant,  in  consideration  of  the  covenants  of 
the  plaintiff  in  the  same  deed,  covenants  that  he  will  pur- 
chase certain  lands  of  the  plaintiff,  then  in  possession  of  the 
defendant,  and  will  pay  for  the  same  a  certain  sum  in  four 
years,  with  interest  annually;  and  the  plaintiff  covenants 
that  he  will  deliver  to  the  defendant  a  conveyance  of  the 
land,  upon  his  paying  the  said  sums  at  the  time  or  times 
mentioned.  Held,  the  plaintiff  might  recover  the  interest  at 
the  end  of  each  of  the  tln-ee  first  years,  by  way  of  rent ;  but 
not  the  fourth  year's  interest,  nor  the  principal,  without 
making  a  tender  of  the  conveyance.^  .Jackson,  J.,  says  : 
"  The  defendant  was  to  pay  his  money /or  the  land;  he  did 
not  intend  to  pay  at  the  end  of  the  four  years,  if  the  plaintiff 
should  then  refuse  to  deliver  the  deed.  On  the  other  hand, 
the  plaintiff's  intestate  was  to  deliver  the  deed  vpon .  receiv- 
ing the  money ;  he  did  not  intend  to  convey  the  land,  unless 
the  defendant  should  pay  the  money.  These  were  mutual 
conditions,  and  neither  party  could  complain  of  the  default 
of  the  other,  until  he  had  offered  to  perform  his  part  of  the 
agreement.  The  defendant  was  already  in  possession  of  the 
land  to  be  conveyed,  at  the  time  of  executing  the  instrument. 
It  appears  that  he  was  to  continue  in  possession  during  the 
four  years.     He  would  receive  the  consideration  for  which 

'  Goodisson  v.  Nunn.  4  T.  R.  761.  ^  Gardiner  v.  Corson,  15  Mass.  504. 

2  Glazebrook  v.   Woodrow,  8  T.  R. 
366. 


8  LAW    OF    VENDORS    AND    PURCHASERS.  [CII.  XXVI- 

this  interest  or  rent  was  to  be  paid,  whether  the  land  was 
finally  conveyed  to  him  or  not ;  and  he  therefore  covenants 
to  pay  it,  without  reference  to  the  expected  conveyance. 
This  interest,  therefore,  does  not  appear  to  us  to  be  a  sub- 
stantial part  of  the  price.  The  price  was  to  be  paid,  when 
he  received  the  deed  ;  the  deed  not  having  been  delivered 
nor  tendered,  the  plaintiff  cannot  recover  the  price.  But  the 
plaintiff  was  entitled  to  sue  for  and  recover  the  interest,  at 
the  end  of  each  of  the  three  first  years ;  and  nothing  has 
since  occurred  to  bar  that  right.  As  to  the  interest  for  the 
fourth  year,  that  was  to  be  paid,  together  with  the  principal, 
on  receiving  the  deed.  In  one  view,  this  may  be  considered 
to  be  equitably  due,  as  much  as  the  interest  for  the  three 
preceding  years.  But  the  parties  have  thought  fit  to  make 
tfie  last  payment  of  interest,  as  well  as  the  payment  of  the 
principal  sum,  depend  on  the  condition  of  his  receiving  a 
deed  at  that  time." 

12.  The  general  rule  above  stated  is  recognized,  even 
where  the  facts  of  the  case  do  not  admit  its  application. 
Thus  a  bond  was  given  to  sell  and  convey  certain  land, 
upon  payment  of  a  certain  sum,  by  a  good  and  sufficient 
deed  of  warranty,  and  to  procure  the  wife  of  the  grantor  to 
release  her  dower.  Held,  if  the  grantor  was  seized,  and  the 
deed  tendered  was  duly  executed,  with  proper  covenants  of 
warranty,  the  penalty  was  saved,  although  the  land  was 
incumbered  by  a  mortgage.  The  Court  say  :  "  The  import 
of  these  words  is  confined  to  the  form  of  the  deed  and  its 
execution,  and  not  to  the  title.  If  the  money  was  to  be  paid 
on  receiving  the  deed,  it  might  be  a  reasonable  construction, 
that  a  good  and  sufficient  title  should  be  conveyed ;  other- 
wise the  purchaser  might  part  with  his  money,  not  merely 
for  the  land,  but  for  a  lawsuit  also.  In  the  present  case, 
however,  the  money  was  to  be  first  paid,  and  the  plaintiff 
might  as  well  sue  on  the  covenants  in  his  deed,  as.  on  his 
bond."  1 

1  Aiken  y.  Sanford,  5  Mass.  494,  499.    • 


CH.  XXVI.]         GENERAL   REMEDIES,   ETC.— r-MUTUALITY.  9 

13.  But,  where  it  was  stipulated,  in  a  contract  for  the  sale 
of  a  farm,  that  part  of  the  price  should  be  paid  when  the 
deed  was  ready,  and  the  residue  in  annual  instalments  ; 
held,  the  vendor  could  not  claim  any  part  of  the  price  till  a 
tender  of  an  unincumbered  title  ;  and,  there  being  a  mort- 
gage on  the  farm,  that  tender  of  a  warranty  deed  was  insuf- 
ficient. Wilde,  J.,  says,  "  the  agreement  of  the  plaintiff  was 
to  convey  the  farm,  which  must  be  construed  as  an  agree- 
ment to  convey  a  good  title  free  from  all  incumbrances. 
There  is  a  material  distinction  between  the  case  at  bar,  and 
that  of  Aiken  v.  Sanford.^  (s.  12.)  In  that  case  the  condition 
of  the  bond  was,  to  convey  by  a  good  and  sufficient  deed  of 
warranty,  and  the  deed  was  not  to  be  given  until  after  the 
payment  of  the  purchase-money.  And  the  Court  say,  "  that 
if  the  money  was  to  be  paid  on  receiving  the  deed,  it  might 
be  a  reasonable  construction,  that  a  good  and  sufficient  title 
should  be  conveyed."  That  such  is  the  law,  we  think  very 
clear  according  to  all  the  authorities."  ^ 

14.  The  advertised  terms  and  conditions  of  an  auction 
sale  of  land  were,  that  warranty  deeds  should  be  given ;  that 
purchasers  should  have  ten  days  to  examine  the  title;  that 
upon  these  terms  the  vendor  would  convey  to  purchasers, 
who  should  make  their  payments  and  take  their  deeds, 
within  twelve  days  from  the  sale,  provided  the  deeds  con- 
formed to  the  conditions.  The  defendant,  a  purchaser,  hav- 
ing ascertained  that  the  vendor  had  no  record  title,  except  a 
mortgage  made  to  the  person  from  whom  he  bought,  and 
that  the  latter  derived  his  title  in  part  from  one  whose  wife 
did  not  appear  by  the  record  to  have  released  her  dower, 
refused  to  make  payment  and  receive  a  warranty  deed. 
Held,  as  the  title  was  defective,  the  defendant  was  not, 
bound  to  take  the  deed.  Fletcher,  J.,  says,  (in  substance,) 
"  By  a  reasonable  and  just  construction  of  the  contract,  the 
plaintiffs  were  bound  to  make  a  good  and  clear  title.  Ten 
days  were  allowed  purchasers  to   examine  the  title.     Pur- 

1  5  Mass.  494.  ^  Swan  v.  Drury,  22  Pick.  489. 


10  LAW    OF    VENDORS    AND    PURCHASERS.  [CII.  XXVI. 

chasers  could  have  no  other  ol)j<;ct  in  examining  the  title, 
than  to  see  if  the  plaintifl's  could  make  a  good  title  ;  and 
there  could  be  no  object  in  ascertaining  this,  unless  they 
were  bound  to  make  such  title.  The  purchaser  was  allowed 
time  to  examine  the  title,  to  see  if  he  could  get  what>  he  had 
purchased,  and  whetlier  the  plaintifi's  actually  had  and  could 
convey  what  they  had  undertaken  to  sell.  Upon  examining 
the  title,  the  defendant  ascertained,  and  such  clearly  was  the 
fact,  that  the  plaintiffs  could  not  convey  a  good  and  clear 
title.  The  land  was  incumbered,  and  the  defendant  was  not 
bound  to  take  and  pay  for  an  incumbered  estate.  The  de- 
fendant did  not  contract  for  a  deed  only ;  he  contracted  for 
and  purchased  the  land.  The  plaintiffs  undertook  to  make 
to  the  defendant  a  good  and  clear  title  to  the  land."  ^ 

15.  A,  agreed  to  convey  to  B.  a  farm  on  which  C.  lived, 
on  the  1st  of  May,  1811,  and  B.  covenanted  to  pay  to  A.  on 
that  day  $500,  part  of  the  purchase-money.  On  the  day 
appointed,  A.  tendered  a  deed,  executed  by  A.  and  his  wife, 
not  acknowledged  by  the  wife,  and  which  did  not  embrace 
all  the  farm.  Held,  the  covenants  were  dependent,  and 
delivery  of  the  deed  and  payment  of  the  money  were  con- 
current acts.  Also,  that  this  tender  was  not  a  performance 
of  the  covenant  of  A.^ 

16.  By  articles  of  agreement  between  the  plaintiff  and 
defendant,  the  plaintiff,  for  the  consideration  thereinafter- 
mentioned,  covenanted  to  execute  and  deliver  to  the  defend- 
ant, on  the  1st  of  May,  1806,  a  good  and  sufficient  deed  of 
eighty-four  acres  of  land,  and  the  defendant  covenanted  to 
pay  to  the  plaintiff  $1,000  on  the  1st  of  May,  1806,  and 
$875  on  the  1st  of  May,  1812.     In  an  action  for  the  $1,000, 

Jield,  these  were  dependent  covenants,  and  the  plaintiff  must 
deliver  or  tender  a  deed  to  the  defendant,  before  he  could 
bring  this  action.^ 

17.  Declaration,  that  it  was   agreed  between  the  plaintiff 


1  Mead  v.  Fox,  6  Cush.  199,  201,  202.         ^  Greene  v.  Reynolds,  2  Johns.  201 

2  Jones  I-.  Gardner.  10  Johns.  266. 


en.  XXVI.]  GENERAL    REMEDIES,    ETC. MUTUALITY.  11 

and  defendant,  that  the  plaintifF  should  purchase  two  houses 
of  the  defendant  for  the  residue  of  a  term  of  years,  &c. ;  that 
the  defendant  should  paper  them,  &c. ;  that  the  plaintiff 
should  pay  part  of  the  purchase-money  on  completion  of  the 
conveyance,  and  that  the  defendant  should  make  a  good 
title.  The  agreement  was  as  follows:  "  (The  plaintiff)  hav- 
ing agreed  to  purchase  of  (the  defendant)  two  leasehold 
houses,  &c. ;  (the  defendant)  hereby  agrees  to  paper,  &c., 
(the  plaintiff)  to  pay,  &c.,  at  the  time  of  the  conveyance, 
&c."  Held,  the  agreement  to  purchase,  though  recited  as 
an  existing  agreement,  was  to  be  considered  as  part  of  the 
agreement  produced ;  also,  that  there  was  no  variance  on 
the  ground  that  the  agreement  was  silent  as  to  the  title,  the 
contract  to  make  a  title  being  implied.^ 

18.  By  an  indenture  dated  in  March,  A.  agrees  to  give  B. 
450  acres  of  land  in  Ridgeville,  Ohio,  the  land  to  be  as  good 
as  C.'s,  and  B.  is  to  receive  in  addition  ^200  at  or  before 
the  1st  of  July,  and  A.,  as  agent  of  D.,  is  to  receive  therefor 
certain  lands  of  B.,  the  possession  to  be  given  of  B.'s  land 
by  the  1st  of  April,  and  B.  is  to  make  his  selection  after  E., 
C,  and  F.,  which  selection  is  to  be  made  by  or  before  the 
1st  of  July,  and  in  consequence  of  B.'s  not  satisfying  him- 
self, then  G.,  H.,  and  I.  shall  average,  if  he  chooses  the  land 
above-mentioned  according  to  the  above  contract,  or  refuses 
to  select,  himself,  and  if  the  said  lands  should  not  prove  to 
be  as  good  as  the  average  of  lands  in  that  vicinity  of  towns, 
then  this  contract  to  be  void.  Held,  that  the  covenant  of 
B.  to  deliver  possession  by  the  1st  of  April  was  an  inde- 
pendent covenant ;  that  A.  might  declare  for  a  breach  of  it 
without  taking  any  notice  of  his  own  covenants ;  and  that 
it  was  insufficient  to  plead,  that  the  land  in  Ridgeville,  from 
which  B.  might  have  made  his  selection,  was  not  as  good  as 
C.'s,  or  that  A.  was  not  the  agent  of  D.,  or  not  authorized 
by  D.  to  make  the  contract  or  to  prosecute  the  action,  or 
that  D.  had  no  land  in  Ridgeville.     Held  also,  that  the  cov- 

'  Hall  V.  Betty,  4  Mann.  &  G.  410. 


12  LAW    OF   VENDORS   AND    PURCHASERS.  [CH.  XXVT. 

enants  to  convey  were   mutual   dependent  covenants,  and 
that  A.  should  have  averred  performance  on  his  "own  part, 
or   an   excuse   for   non-performance  ;    and  that,    B.   having 
omitted  to  select  by  the  1st  of  July,  the  payment  or  tender 
of  the  ^200  was  a  condition  precedent  to  A.'s  right  to  de- 
mand a  deed  of  B.,  and  should  have  been  averred.'     Wilde, 
J.,  says  :  "  The  principal  object  of  the  contract  was  the  ex- 
change of  lands.     No  time  was  appointed  for  making  the 
conveyances,  but  as  the  one  conveyance  was  the  considera- 
tion of  the  other,  we  cannot  doubt  that  it  was  the  intention 
of  the  parties  that  both  should  be  made  at  the  same  time. 
The   plaintiff  declares  that   the  defendant's   covenant  was 
to  have  been  performed  within  a  reasonable  time ;   but  it 
cannot  be  held  reasonable  that  the  plaintiff  should  require 
the  defendant  to  perform  his  covenant,  before  the  plaintiff 
should  be  ready  to  perform  his.     If  the  parties  had  intend- 
ed that  any  such  advantage^  of  priority  should  be  secured 
to  either  party,  it  would  have  been  expressed  in  the  deed. 
It  has  been  argued,  that  the  defendant  was  bound  to  con- 
vey at  the  same  time  he  was  to  deliver  possession  ;  but  it 
is  manifest  from  the  language  of  the  deed,  that  such  was 
not  the  intention  of  the  parties.     The  two  conveyances  were 
to  be  concurrent  acts,  and  the  covenants  are  therefore  de- 
pendent.    But  this  point  does  not  appear  to  be  material. 
For  if  the  plaintiff  was  prevented  from  performing  his  cov- 
enant by  the  neglect  of  the  defendant,  it  is  equivalent  to 
performance  by  the  plaintiff.     Now  it  is  clear  that  no  con- 
veyance could  be  made  by  the  plaintiff,  before  the  selection 
of  the  lands  was  made,  and  this  selection  was  to  be  made 
by  the  defendant.     If  he  refused  to  make  it,  it  was  incum- 
bent on  him  to  give  notice,  that  the  selection  might  be  made 
by  the  three  commissioners.     This  defect  in  the  declaration, 
however,  is  not  material,  because  on  another  ground  the 
declaration  is  defective.     It  is  stipulated  in  the  deed,  that 
the  plaintiff  should  pay  the  sum  of  $200,     If  this  payment 

1  Couch  V.  Ingersoll,  2  Pick.  300. 


CII.  XXVI.]        GENERAL    REMEDIES,    ETC. Ml'TUALITY.  13 

was  to  be  made  previous  to  the  time  when  the  conveyances 
were  to  be  made,  or  at  the  same  time,  it  is  very  clear  that 
the  plaintiff  cannot  recover  without  averring  that  he  paid  or 
tendered  payment  'of  the  money.  This  payment  was  to 
have  been  made  the  1st  day  of  July,  nearly  a  month  before 
the  time  when  a  deed  was  demanded,  and  before  the  time 
contemplated  by  the  parties  for  the  performance  of  the  prin- 
cipal covenants.  The  defendant  was  not  obliged  to  make 
the  selection  before  the  1st  day  of  July  ;  and  if  not  then 
made  a  further  time  was  allowed,  that  it  might  be  made  by 
the  men  appointed  for  that  purpose.  When  the  plaintiff 
demanded  a  deed  of  the  defendant  on  the  30th  day  of  July, 
he  was  obligated  to  pay  or  tender  payment  of  the  ^200." 

19.  Agreement,  that  the  defendant  should  have  certain 
land,  in  consideration  of  which  he  was  to  pay  the  plaintiff 
a  certain  sum  in  three  instalments,  the  deed  to  be  executed 
at  the  completing  of  the  last  payment.  Held,  the  agree- 
ment to  pay  the  first  two  instalments  was  independent,  but 
the  agreements  of  the  defendant  to  pay  the  last  instalment, 
and  of  the  plaintiff  to  execute  and  deliver  the  deed,  were 
mutually  dependent  and  conditional.  Shaw,  C.  J.,  says : 
"  Where  the  whole  purchase-money  is  to  be  paid  at  once, 
and  the  deed  is  to  be  then  given,  the  covenants  are  held  to 
be  dependent,  because  it  is  unreasonable  to  presume  that 
the  purchaser  intended  to  pay  the  whole  consideration,  with- 
out having  the  equivalent,  in  a  title  to  the  land  purchased. 
The  same  reason  applies  to  the  last  instalment.  An  obvious 
reason  why  the  first  and  second  instalments  should  be  paid 
without  having  a  deed  is,  that  the  vendor  was  to  withhold 
the  title,  as  a  security  for  the  purchase-money,  and  the  ven- 
dee was  content  to  rely  on  the  vendor's  contract  for  his 
future  title ;  but  no  such  reason  applies  to  the  final  and 
complete  payment  of  the  purchase-money."  ^ 

20.  The  particular  requisites  of  a  good  title  will  be  con- 
sidered in  the  next  chapter. 

'  Kane  v.  Hood,  13  Pick.  281,  28.3. 
VOL.  II.  2 


It  LAW   OP   VENDORS    AND    PUUCHASERS.        [CH.  XXVII. 


CHAPTER  XXVIL 


REQUISITES    OF   A    VALID    TITLE. 


1.  In  whiit  a  valid  title  consists.  33.   Title  in  case  of  leasehold  mteresta 

2.  A  douhtfal  title  is  insuflicient.  and  rents. 

6.  Qualifications  of  the  rule.  41.  Title  as  affected  l)y /"c^f/me/ifo-,  &c. 

10.  Legal  or  equitable  title.  i      47.  Title    as    connected   with   hank- 

13.  Title  hy  (/cW.  ruptcy. 

19.  By  rccorerij.  '■       50.  Presumption  of  title. 

20.  By   destruction   of  contingent  re-         54.  Title    by  limitation  and  lapse   of 
niainders.         _  time. 

21.  By  will,   and  other    assurances        57.  Title  derived  from  wiarnerf  women 
connected  with  the  estates  of  persons  de-  and  infants. 

ceased.  63.  Miscellaneous  questions  of  title. 

I  — Time  allowed  for  perfecting  a  title. 

1.  Having  in  the  last  chapter  considered  the  general  obli- 
gation of  a  vendor  to  furnish  a  good  title,  in  order  to 
maintain  a  suit  for  the  price,  we  shall  hereafter  state  the 
few  exceptions  and  qualifications  to  this  rule,  growing  out 
of  the  language  of  the  contract,  the  intention  of  the  parties, 
and  the  circumstances  of  the  case.  Before  proceeding,  how- 
ever, to  this  part  of  the  subject,  the  natural  succession  of 
topics  demands  a  summary  view  of  the  various  forms  or 
modes  in  which  a  title,  such  as  the  vendor  is  required  to 
make,  may  exist,  or  of  the  assurances  and  transfers  by  which 
it  may  be  created.  As  has  been  already  stated,  (p.  215,)  a 
full  analysis  of  the  subject  of  title  to  real  property  is  appro- 
priately to  be  found  in  treatises  upon  executed  alienations, 
such  as  inheritance,  deed,  or  devise,  and  not  in  a  work  like 
the  present,  which  relates  wholly  to  executory  contracts. 
The  brief  abstract,  however,  which  we  propose  to  present, 
of  the  elements  that  enter  into  a  good  title,  seems  to  be 
necessary,  in  order  to  perfect  and  make  intelligible  the  gen- 
eral proposition,  that  such  a  title  is  demanded  from  the 
vendor. 


CH.  XXVII.]  REQUISITES   OF   A    VALID   TITLE.  15 

2.  As  has  been  already  stated,  (Chap.  25,)  it  being  in  the 
discretion  of  the  Court  to  decree  specific  performance  of  an 
agreement  for  a  purchaser,  or  to  leave  it  to  law ;  a  purchaser 
will  not  be  compelled  to  take  a  doubtful  title.'  (a)  More 
especially  if  the  contract  is  for  an  indefeasible  title?  Nor 
will  a  case  be  directed  without  his  consent.'^  And  a  pur- 
chaser brought  into  Court  upon  a  doubtful  title  ought  to  be 
discharged,  with  costs.*  So  a  purchaser  is  not  compelled  to 
take  a  doubtful  title,  although  the  defect  appeared  on  the 
abstract,  delivered  before  he  filed  his  h\\\.^  So  the  Court 
wiU  not  compel  specific  performance  of  an  agreement,  and 
oblige  a  defendant  to  accept  a  title,  which  the  complainant 
cannot  make  out  to  be  clearly  good  and  free  from  incum- 
brances.^ So,  upon  a  bill  for  specific  performance,  if  the 
vendor's  title  to  a  part  of  the  land  is  doubtful,  the  Court 
cannot  compel  him  to  make  good  that  part  by  a  convey- 
ance of  land  out  of  the  same  survey,  to  which  he  has  an 

1  Cooper   V.    Denne,    1    Ves.    565  ;  ^  j^elly  v.  Bradford,  3  Bibb,  317 

Trent  v.  Hanning,  10  Ves.  500;  Eoake  '^  Roake  v.  Kidd,  5  Ves.  647. 

V.  Kidd,  5  Ves.  647;  Price  v.  Stran>re,  *  Blosse  v.  Clanmorris,  3BIigh,  62. 

6  Madd.  159;  Hartley  v.  Pehall,  Peake's  ^  Stapylton  v.  Scott,  16  Ves.  2?2. 

Cas.  131  ;  Jervoise  v.  Northumberland,  "  Butler  v.  O'Hear,  1  Desaus.  382. 
1  Jac.  &  W.  569  ;  Marlow  v.  Smith,  2 
P.  Wms,  198. 


(a)  The  rule  ajjpears  to  be  now  well  established,  as  stated  in  the  text. 
Formerly,  in  compelling  a  purchaser  to  take  a  title,  the  Court  acted  merely 
upon  its  own  opinion.     Jervoise  v.  Northumberland,  1  Jac.  &  Walk.  569. 

Upon  a  decision  of  the  Court  of  Exchequer,  that  a  presumption  from 
non-payment  of  tithes  could  not  bar  even  a  lay  impropriator,  the  Lord 
Chancellor,  though  holding  the  contrary  opinion,  would  not  compel  a  pur- 
chaser to  take  such  a  title;  and  dismissed  the  bill  against  him  for  specific 
performance.  Rose  v.  Calland,  5  Ves.^  186.  But,  it  has  been  held,  the 
question  of  title  or  no  title  being  matter  of  opinion  for  the  Court,  that  the 
purchaser  is  bound  by  that  opinion,  and  cannot  object  to  take  the  title  on 
the  ground  of  the  difficulty  of  the  question  on  which  it  depends.  Rushton 
0.  Craven,  12  Price,  599. 

Specific  performance  was  decreed  against  a  purchaser  under  a  power  of 
sale  in  a  mortgage,  without  the  mortgagor,  though  under  a  covenant  to  the 
mortgagee  to  join  in  a  sale  ;  but  without  costs,  the  only  authority  produced 
not  being  in  print.     Corder  v.  Morgan,  18  Ves.  344. 


16  LAW   OF    VEXDORS   AND    PURCHASERS.        [CH.  XXVII. 

undisputed  title,  but  will  give  a  compensation  in  money.' 
And,  in  f^eneral,  the  Court  will  not  compel  a  purchaser  to 
take  a  title  depending  upon  matter  of  fact,  if  the  fact  do  not 
admit  of  satisfactory  proof,  or  be  not  well  proved.^ 

3.  A  purchaser  was  not  compelled  to  take  a  title  depend- 
ing on  the  questions,  whether  a  deed,  not  delivered,  but 
merely  retained  by  the  vendor  until  payment  of  the  money, 
could  be  considered  an  escrow  ;  as  between  a  judgment 
creditor  and  the  assignees  in  bankruptcy  of  the  vendor, 
whether  payment  to  the  assignees  would  be  a  performance 
of  the  condition,  making  the  deed  absolute  from  the  begin- 
ning, and  any  conveyance  from  the  assignees  inoperative ; 
if  not  an  escrow,  but  absolute  from  the  commencement, 
whether,  with  reference  to  the  Statute  James  L,  c.  19,  s.  9, 
the  judgment  would  be  operative  as  against  the  lien  of  the 
assignees  for  the  price  ;  and,  if  not,  what  would  prevent  its 
attaching  on  the  estate."^ 

4.  It  being  doubtful,  on  the  construction  of  an  inclosure 
act,  whether  an  allotment  for  a  right  of  warren  was  author- 
rized  by  the  act ;  held,  the  title  to  the  allotment  was  not 
such  as  a  purchaser  could  be  compelled  to  take.* 

5.  Mortgage  with  a  power  of  sale.  Held,  the  unsupported 
solemn  declaration,  under  Stat.  5  &  6  Will.  IV.,  c.  62,  of  the 
mortgagee  alone,  of  a  default  having  been  made,  was  not 
sufficient  evidence  of  that  fact,  as  between  vendor  and  pur- 
chaser.^ 

6.  But,  though  a  purchaser  will  not,  upon  a  bill  for  specific 
performance,  be  compelled  to  accept  a  doubtful  title  ;  yet, 
acting  on  a  moral  certainty,  the  Court  will  not  permit  him 
to  reject  a  title,  upon  the  ground  that  there  is  a  bare  possi- 
bility of  its  proving  to  be  imperfect.^  Mathematical  certainty 
is  not  required.^     Thus  mere  suspicion,  upon  opinions  in  the 

'  Kellv  y.  Bradford,  3  Bibb,  317.  *  Cassamajor   v.   Strode,  2   Myl.    & 

2  Smith  V.  Death,  5  Madd.  371.  Kee.  706. 

3  Sloper  V.   Fish,  2  Ves.  &  B.  145;  ^  Hohson  v.  Bell,  2  Beav.  17. 
Colmore  v.  Tindall,.  2  Y.  &  Jerv.  60.=j.  ^  Laurens  v.  Lucas,  6  Rich.  Eq.  217. 

'  Emery  v.  Grocock  6  Madd.  54. 


CH.  XXVII.]  REQUISITES   OF   A    VALID   TITLE.  17 

abstract,  &c.,  will  not  support  an  objection  by  a  purchaser.^ 
So,  where  a  purchaser  of  land  from  the  assignees  under  a 
voluntary  assignment  gave  bond  for  the  purchase-money, 
and,  on  being  sued  thereon,  interposed  as  a  defence  that  the 
title  was  doubtful ;  held,  it  was  necessary  to  prove  that  the 
title  was  bad.^ 

7.  Upon  the  same  principle,  with  regard  to  the  burden  of 
proof  upon  a  question  of  title,  it  has  been  held,  that,  in  an 
action  against  the  purchaser  of  land,  the  vendor  is  not  bound 
to  show  title.  The  contract  admits,  at  least  prima  facie,  his 
title,  and  the  onus  is  on  the  defendant  to  show  that  he  has 
none.  So,  where  a  party  contracts  to  buy  land,  styling  the 
vendor  trustee,  he  admits  the  vendor's  character  as  trustee, 
dind  prima  facie  his  right  to  convey.  If,  therefore,  the  vendor 
has  no  right  to  convey,  the  onus  of  showing  it  is  on  the 
defendant.^  So,  prima  facie,  he  who  enters  on  land,  under 
a  contract  to  purchase,  admits  the  title  of  the  vendor  to  be 
good  ;  and,  if  he  fails  to  comply  with  the  terms  of  the  con- 
tract, he,  or  any  one  holding  under  him,  cannot,  in  an  action 
by  the  vendor  to  regain  possession  of  the  land,  put  the 
vendor  to  proof  of  his  title.*  But,  on  the  other  hand,  the 
more  rigid  rule  as  to  the  vendor  has  been  adopted,  that, 
where  relief  is  prayed  against  him  in  consequence  of  his 
being  unable  to  make  a  title,  his  answer  must  not  merely 
assert  that  he  has  a  good  title,  but  must  show  his  title.^  So, 
in  a  suit  by  a  vendee  to  rescind  a  contract  for  want  of  title 
in  the  vendor,  and  calling  on  him  to  exhibit  his  title,  the 
vendor  must  exhibit  the  deeds,  and  other  writings,  if  there 
be  any,  by  which  he  derives  title  ;  and  he  must  show  a  paper 
not  a  parol  title.^ 

8.  Where  the  purchaser  of  an  interest,  sold  under  a  decree 
in  Chancery,  thereby  acquires  information  as  to  a  supposed 
defect  in  the  title  to  that  interest,  and  improperly  avails  him- 

1  M'Queen  v.  Farqubar,  11  Ves.467.  "*  Pyles  v.  Reeve,  4  Rich.  555. 

-  Crawford  v.  Murphv,  22  Penn.  84.  ^  Boyer  v.  Porter,  1  Teim.  258. 

a  Breithaupt  v.  Tliurraond,  3  Rich.  **  Metcalfe  v.  Dallatn,  4  J.  J.  Marsh. 

216.  200. 


18  LAW  OF  VENDORS  AND  PURCHASERS.   [CH.  XXVH. 

self  of  such  information,  by  purchasing  the  estate  of  the 
person,  who  alone  could  have  taken  advantage  of  the  sup- 
posed defect ;  such  purchaser  will  not  be  allowed  the  benefit 
of  the  general  rule  as  to  doubtful  titles.^ 

9.  Objections  by  a  purchaser  of  allotments  under  an  in- 
closing act,  that  the  award  of  the  commissioners  was  not 
made,  were  overruled  ;  the  act  enabling  a  sale  and  declaring 
the  conveyance  valid  before  the  award ;  and,  even  if  the 
commissioners  should  vary  the  allotments,  the  purchaser 
having  full  notice  of  all  the  circumstances.^ 

10.  The  question  has  often  arisen,  whether  the  title  which 
a  purchaser  is  bound  to  accept  must  be  a  legal  title,  and 
also  whether  a  mere  legal  title  is  sufficient,  if  there  are  any 
equitable  objections  to  it.  Upon  these  points  the  authorities 
are  somewhat  conflicting.  It  has  been  held,  in  general, 
that  a  purchaser  is  not  to  be  compelled  to  take  an  equi- 
table estate.^  Thus,  where  a  vendor  covenanted  that  he 
would  make  or  cause  to  be  made  to  the  vendee  a  good  and 
sufficient  deed,  upon  payment  of  the  balance  of  the  pur- 
chase money  ;  held,  the  vendee,  who  had  gone  into  and 
remained  in  possession,  could  not  be  compelled  to  accept  an 
equitable  title.^  So  it  is  held,  that  a  covenant  to  convey  the 
title  means  the  legal  estate  in  fee,  free  from  all  valid  claims, 
liens,  or  incumbrances.^  So,  where  a  vendor  sold  land  clear 
of  all  incumbrances,  and,  at  the  time  of  action  brought  for 
the  purchase-money,  and  until  the  time  of  trial,  held  only  an 
incumbered  equitable  title,  the  fee  being  in  a  third  person  ; 
held,  he  could  not  recover.^  So,  if  a  vendor  represents  his 
title  to  be  good,  it  is  the  same  as  saying  his  title  is  perfect 
for  the  entire  tract,  unaffected  by  any  gaps  in  the  chain  of 
title,  or  any  flaw  or  incumbrance  whatever.' 

11.  Under  a  limitation  in  a  marriage  settlement  to  the 
husband  for  life,  then  to  the  wife  for  life,  then  to  the  heirs 

1  Sheppaid  y.Doolan,  3  l)ru.  &  W.  1.  ^  Jones  v.  Gardner,  10  Johns.  266. 

-  Kingsley  y.   Young,    17    Vos.  468;  ^  Ray  an  t;.  Gaither.  11  Gill  &  Johns. 

18  Ves.  207.  472. 

3  Abel  V.  Heathcote,  2  Ves.  100.  '  Smith  v.  Robertson,  23  Ala.  312. 
■*  Jones  V.  Taylor,  7  Tex.  240. 


CH.  XXVII.]  REQUISITES    OF   A    VALID    TITLE. 


19 


of  the  body  of  the  wife  and  their  heirs,  the  wife  took  an 
estate  tail.  And,  although  it  was  recited  in  the  deed,  that  ^ 
the  husband's  father  conveyed  in  consideration  of  the  mar- 
riage, and  "  for  settling  and  establishing  the  lands,  &c.,  to 
the  uses  thereafter  expressed,"  and  subsequent  uses  were 
added  in  the  deed ;  the  Court  would  only  take  notice  of  the 
legal  estate ;  and,  the  husband  and  wife  having  levied  a 
fine,  and  agreed  to  sell  the  estate  to  a  purchaser,  from  whom 
they  had  received  part  of  the  purchase-money,  he  could  not 
recover  it  back,  in  an  action  for  money  had  and  received.^ 
So,  where  the  vendor  of  newly  inclosed  lands  undertakes  to 
convey  them ;  this  is  an  undertaking  to  convey  the  legal 
estate  ;  and,  the  vendor  having  only  an  equitable  interest 
previous  to  the  assignment  by  the  commissioners,  the  ven- 
dee is  entitled  to  recover  his  deposit.^ 

12,  While  a  mere  equitable  title  has  been  held  insuf- 
ficient, on  the  other  hand  it  has  been  decided  that,  in  an 
action  to  recover  back  the  deposit  on  a  purchase,  upon  the 
vendor's  failure  to  make  a  good  title,  the  Court  will  collat- 
erally inquire  whether  the  title  be  good  in  equity.  For  a 
contract  to  make  a  good  title  means  a  title  good  both  at  law 
and  in  equity ;  and  a  Court  of  Law  will  adjudge  a  title  to 
be  either  good  or  bad,  having  no  middle  term  for  it.^  So  A. 
buys  a  house  at  an  auction,  and  deposits  part  of  the  pur- 
chase money,  the  remainder  to  be  paid  upon  the  vendor's 
making  a  good  title.  It  turns  out  that  the  vendor's  title  is 
good  in  law,  but  bad  in  equity.  Held,  that  A.  is  entitled  to 
recover  back  the  deposit  in  an  action  at  law.^  But  in  a 
later  case,  of  assumpsit  to  recover  money  deposited  upon  a 
purchase,  upon  an  allegation  that  the  defendant  had  failed 
to  make  a  proper  title ;  it  was  held  that  a  Court  of  Law  will 
not  consider  whether  the  title  is  of  a  doubtful  description, 
such  as  a  Court  of  Equity  would  not  compel  an  unwilling 
purchaser  to  take  ;  but  simply  whether  the  defendant  has  or 
has  not  a  legal  title  to  convey.^ 

1  Alpass  V  Watkins,  8  T.  R.  516.  ■*  Maberley  v.  Robins,  1   Marsh.  2.58. 

■^  Cane  v.  Baldwin,  1  Stark.  Ca.  65.  ^  Boyraan  i'.  Gutch,  7  Bing.  379. 

3  Maberley  v.  Robins,  5  Taunt.  625. 


20  LAW    OF    VENDORS   AND   PURCHASERS.        [CII.  XXVII. 

13.  In  general,  a  title   by  deed  or  conveyance  is  the  one 
J  most  frequent   and   least  liable  to   objection.     But,  under 

peculiar  circumstances,  a  purchaser  may  object  to   a  title 
resting  on  this  foundation. 

14.  A.,  entitled  under  his  marriage  settlement  to  a  life 
interest  in  freehold  estates,  with  remainder  to  the  use  of 
trustees  for  a  term  of  one  thousand  years,  to  secure  a  joint- 
ure and  portions,  and  remainder  to  himself  in  fee,  conveyed 
part  of  the  lands  to  B.  in  fee,  in  exchange  for  others.  B.'s 
heir  afterwards  having  contracted  for  .the  sale  of  the  land, 
the  purchaser  refused  to  complete  the  contract,  on  the  ground 
that  A.  had  no  power  thus  to  exchange.  The  vendor  then 
procured  the  execution  of  certain  deeds,  with  a  view  of 
bringing  the  exchange  within  the  settlement,  which,  how- 
ever, were  grossly  inaccurate.  Held,  the  purchaser  was  not 
bound  specifically  to  perform  the  agreement.^ 

15.  A  purchaser  is  not  compellable  to  accept  a  title  re- 
ported good  by  the  deputy  remembrancer,  in  a  creditor's 
suit,  where  the  close  in  dispute,  having  a  given  name,  by 
uiiich  it  has  been  long  known,  is  not  described  by  it  in  the 
title-deeds,  notwithstanding  the  vendor  has  been  long  in 
possession  of  the  land,  as  part  of  the  estate  conveyed  to 
him  by  the  deeds.     Such  a  title  is  mexely  primd  facie? 

16.  The  generality  and  vagueness  of  descriptions  of  copy- 
hold property  on  the  Court-rolls  are  so  well  known,  that  a 
vendor  is  not  bound  to  show  how  the  description  on  the 
Court-roll  is  to  be  applied  to  the  present  state  of  the  property, 
if  he  prove  that  the  property  has  actually  been  enjoyed  and 
passed  under  that  description  for  upwards  of  sixty  years.-^ 

17.  Where  a  vendee  is  in  possession  under  a  conveyance 
with  general  warranty,  and  the  title  has  not  been  questioned 
by  any  suit  prosecuted  or  threatened ;  such  vendee  has  no 
claim  to  relief  in  equity  against  the  payment  of  the  pur- 
chase money,  unless  he  can  show  a  defect  of  title,  respecting 
which  the  vendor  was  guilty  of  fraudulent  misrepresentation 

1  Cowgill  ?;.Oxmantown,  3  Y.  &  Coll.         -  Eyton  v.  Dieken,  4  Price,  30.3. 
369.  3  Long  v.  Collier,  4  Russ.  267. 


CH.  XXVII.]  REQUISITES    OF   A    VALID    TITLE.  21 

or  concealment,  and  which  the  vendee  had  at  the  time  no 
means  of  discovering.' 

18.  The  vendee  is  not  bound  to  accept  a  title,  depending 
on  a  conveyance  to  a  creditor,  where  there  is  evidence  to 
raise  a  suspicion  that  the  object  of  the  conveyance  was  to 
elude  other  creditors  who  were  pressing  for  judgments.^  So, 
where  the  vendor  claims  the  estate  by  purchase  from  his 
son,  the  purchaser  is  entitled  to  evidence  of  the  fairness  of 
the  transaction.^ 

19.  A  purchaser  is  not  bound  to  accept  a  title  depending 
upon  a  recovery,  suffered  by  a  tenant  in  tail,  of  lands,  the 
reversion  of  which  had  vested  in  the  Crown  by  attainder  of 
the  reversioner.* 

20.  In  one  case  the  Court  hesitated  upon  giving  sanction 
to  a  title,  founded  on  the  destruction  of  contingent  remain- 
ders by  a  tenant  for  life ;  there  being  no  trustees  to  support 
them.^  But,  in  a  later  case,  specific  performance  was  de- 
creed, although  the  vendor's  title  was  founded  on  the  de- 
struction of  contingent  remainders.^ 

21.  Title  by  ivill  or  devise  is  hardly  less  common  or,  im- 
portant than  that  by  deed  ;  and,  in  conformity  with  the 
general  principle  above  stated,  it  is  held  that  a  purchaser  is 
not  compelled  to  take  a  title,  depending  upon  the  words  of 
a  will,  which  are  too  doubtful  ever  to  be  settled  without 
litigation.'^  Thus,  a  testator  devised  all  his  manors,  mes- 
suages, lands,  tenements,  tithes,  and  hereditaments,  and  all 
his  real  estate  whatsoever,  "  except  what  is  hereinafter  men- 
tioned and  devised,"  to  the  use  of  all  his  children  succes- 
sively in  strict  settlement ;  and  gave  two  of  them  annuities, 
which  he  charged  upon  a  rectory  held  by  him  under  a  lease 
for  lives,  which  lease  he  directed  to  be  renewed,  if  those  two 
children,  or  either,  should  be  living  at  his  death  ;  and  that 
their  lives  or  that  of  the  survivor  should  be  inserted  in  the 


1  Beale  v.  Sciveley,  8  Leigh,  658.  ^  Koake  v.  Kidd,  5  Ves.  647. 

2  Gans  V.  Kcnshaw,  2  Ban-,  34.  ^  Hasker  v.  Sutton,  2  Sim.  &  Stu.  513. 

3  Boswell  V.  Mendham,  6  Madd.  373.  ''  Sharp  v.  Adcock,  4  Russ.  374. 
*  Blosse  V.  Clanmoriis,  3  Bligh,  62. 


22  LAW    OF   VENDORS   AND   PURCHASERS.        [ciI.  XXVII. 

new  lease,  and  the  fine  paid  out  of  his  personal  estate.  He 
gave  part  of  his  personal  estate  specifically  ;  and  directed 
the  residue  to  be  laid  out  in  land,  to  be  settled  to  the  same 
uses  as  his  real  estate ;  but  afterwards,  by  a  testamentary 
paper,  unattested,  disposed  of  his  personal  estate  otherwise. 
The  heir  contracts  to  sell  the  lease  of  the  rectory  ;  and,  upon 
a  case  directed  to  the  Court  of  King's  Bench,  on  his  bill  for 
specific  performance,  the  certificate  was  that  the  lease  did 
not  pass  by  the  will,  but  devolved  on  the  heir  as  special 
occupant ;  but  the  Lord  Chancellor  considered  that  title  too 
doubtful  to  be  forced  on  a  purchaser.  An  Act  of  Parlia- 
ment was  therefore  obtained.^ 

22.  Where  a  party  was  authorized  by  a  power  created 
since  1838,  to  appoint  by  deed  or  deeds,  writing  or  writings, 
under  hand  and  seal,  attested  by  two  witnesses,  and  made  a 
will,  devising  and  bequeathing  the  property,  dated  subse- 
quently to  the  Statute  7  Will.  IV.,  and  1  Vict.  c.  26,  and 
executed  conformably  with  that  act ;  a  purchase,  depending 
for  its  title  upon  the  question  whether  it  was  valid,  was  held 
not»to  be  so  free  from  doubt,  as  that  a  purchaser  was  bound 
to  take,  and  would  be  compelled,  in  a  suit  for  specific  per- 
formance, to  accept  it.^ 

23.  A  testator  devised  to  his  wife,  in  fee,  all  his  real 
estates  of  which  he  might  die  possessed.  Subsequently  he 
purchased  an  advowson,  and  by  a  codicil  ratified  and  con- 
firmed his  will.  Previously  to  the  discovery  of  the  codicil, 
the  wife  contracted  to  sell  the  advowson,  but,  an  objection 
having  been  taken  to  her  title,  the  codicil  was  found  and 
produced,  and  a  statutory  declaration  made  by  the  attesting 
witnesses,  as  to  its  due  execution  and  validity.  The  pur- 
chaser, however,  refused  to  complete,  on  the  ground  that  the 
codicil  did  not  pass  the  advowson,  and  also  requiring  it  to 
be  proved  in  the  Ecclesiastical  Court.  Held,  that  the  codicil 
did  sufficiently  refer  to  the  will,  but  that  the  evidence  of  its 


'  Sheffield  v.  Mulgrave,  2  Ves.  526.  -  CoUard  v.  Sampson,  21  Eng.  L. 

Eq.  352. 


CH.  XXVIT.]  REQUISITES    OF   A    VALID   TITLE.  23 

validity  was  insufficient ;  that  the  purchaser  could  not  be 
compelled  to  take  the  title,  without  the  proof  necessary  to 
establish  a  will  against  the  heir;  and  that  the  codicil  ought 
to  be  proved  in  the  Ecclesiastical  Court.^ 

24.  Held,  also,  the  title  not  being  completed  before  the 
hearing,  the  purchaser  was  not  liable  to  pay  interest ;  but, 
the  suit  having  been  rendered  necessary  by  his  disputing  the 
effect  of  the  codicil,  even  if  proved,  as  a  republication,  he 
was  not  allowed  costs.^ 

25.  Devise  of  copyhold  estates,  the  legal  estate  being 
outstanding,  "  to  my  son,  R.  W.  G,,  to  be  entailed  upon  his 
male  heirs,  and  failing  such,  to  pass  to  his  next  brother,  and 
so  on  from  brother  to  brother,  allowing  £2,500  to  be  raised 
upon  the  estates  for  female  children  each."  The  point 
whether  this  was  a  trust  executed  or  executory  ;  and,  if  the 
latter,  whether  an  estate  tail  in  R.  W.  G. ;  was  held  too 
doubtful  to  compel  a  purchaser  to  take  the  title.^ 

26.  A  purchaser  was  decreed  to  take  a  title  under  an 
obscure  will,  amounting  to  a  power  to  sell.  In  such  case, 
the  legal  estate,  not  being  given,  descends  to  the  heir  till 
execution  of  the  power  ;  and  then  passes  to  the  vendee.^ 

27.  Where  an  estate  is  decreed  to  be  sold  for  payment  of 
debts,  and  no  surplus  remains,  the  heir  or  devisee  need  not 
covenant  any  further  than  his  own  acts.  But,  where  the 
surplus  is  considerable,  the  heir  must  covenant  that  neither 
he  nor  his  immediate  ancestor,  and  a  devisee,  that  neither  he 
nor  his  devisor,  have  done  any  act  to  incumber.^ 

28.  Exception  to  a  report  in  favor  of  a  title  derived  from 
an  heir^  on  the  ground  that  the  reversion  in  fee  might  have 
been  disposed  of,  so  as  not  to  have  descended.  Exception 
overruled.*^ 

29.  A  conveyance  in  1793,  from  persons  residing  in  Ber- 
muda, of  lands  then  in  their  possession,  and  to  which,  subject 

'  Weddall  v.  Nixon,  21  Eng.  L,  &  *  Warnefoid  v.  Thompson,  3  Ves. 
Eq.  9.  513, 

-  Il)id.  6  Loyd  v.  Griffith,  3  Atii.  267. 

"- Jervoise  v.  Northumberland,  1  Jac.        ^  Sperling  v.  Trevor,  7  Ves.  497. 
&  W.  .569. 

• 


24  LAW    OP   VENDORS    AND    PURCHASERS.         [CII.  XXVII. 

to  an  outstanding,  but  satisfied  mortgage  term,  they  claimed 
title  under  an  entail  created  in  1732,  through  a  descent  re- 
cited in  the  deeds ;  a  subsequent  assignment  of  the  mortgage 
term  from  the  mortgagee  to  the  purchaser,  and  uninterrupted 
enjoyment  under  his  conveyance ;  will  not  enable  him  to 
make  a  good  title,  if  unsupported  by  extrinsic  evidence  of 
the  pedigree  recited  in  the  deeds,  or  of  possession  prior  to 
1793,  conformable  to  that  pedigree.^ 

30.  Upon  the  death  of  one  of  two  partners,  intestate,  his 
personal  representatives  agreed  to  sell  his  moiety  of  the  real 
property  of  the  partnership  to  the  other,  and  to  furnish  him 
at  their  own  expense  with  an  abstract  of  their  title.  Held, 
they  were  bound  to  furnish  the  usual  abstract  of  titles,  and 
not  merely  their  letters  of  administration  in  relation  to  the 
personal  estate.^ 

31.  A  testator  gave  his  real  and  personal  estate  to  A.  sub- 
ject to  the  payment  of  his  debts  and  certain  annuities,  and 
appointed  him  executor.  Held,  that  A.  could  make  a  good 
title  to  the  real  estate,  without  the  concurrence  of  the  annu- 
itants, and  that  a  purchaser  from  A.  was  not  bound  to  see 
to  the  application  of  the  purchase-money  ;  also,  that  the 
objection  was  one  of  title  and  not  of  conveyance? 

32.  A.,  having,  sold  the  real  estate,  the  purchaser  insisting 
that  the  annuitants  ought  to  concur,  filed  a  bill  against  the 
vendor  for  specific  performance.  The  vendor's  answer  ad- 
mitted the  sufficiency  of  the  personal  estate  to  pay  the 
debts ;  that  they  had  all  been  paid  since  the  contract,  and 
that  the  sale  had  not  been  made  for  the  specific  purpose  of 
satisfying  the  debts.  Held,  these  circumstances  did  not  vary 
the  rule  as  to  the  liability  of  the  purchaser  to  see  to  the 
application  of  the  purchase-money,  and  he  was  bound  to 
complete.* 

33.  Questions  of  title  also  arise  in  reference  to  leasehold 
interests  and  rents.     (See  Chap.  16.) 

34.  A.,  having  sold  certain  leasehold  premises  to  B.,  as- 

1  Fort  V.  Clarke,  I  Russ.  601.  ^  Page  v.  Adam,  4  Beav.  269. 

2  Morris  v.  Kearsley,  2  Y.  &  Coll.  139.         *  Ibid. 


CH.  XXVII.]  REQUISITES   OP   A   VALID   TITLE.  25 

signed  them  by  indenture,  containing  a  proviso  that  B. 
should  not  assign  over,  until  the  whole  of  the  purchase- 
money  should  have  been  paid;  and  B.  and  C.  covenanted 
for  themselves,  their  executors,  administrators,  and  assigns 
for  the  payment  of  the  money.  The  premises,  having  been 
taken  in  execution  for  a  debt  of  B.,  who  had  not  paid  the 
purchase-money,  were  sold  by  the  sheriff  to  D.,  who  paid 
down  a  deposit,  and  agreed  to  complete  the  purchase  on 
having  a  good  title.  Held,  the  non-payment  of  the  pur- 
chase money  by  B.  was-  a  sufficient  objection  to  the  title, 
and  D.  might  recover  back  his  deposit  in  an  action  for 
money  had  and  received.^ 

35.  Declaration,  for  not  completing  the  purchase  of  a  tdrm 
of  years,  of  which  the  plaintiff  was  lessee.  Plea,  that  the 
plaintiff  did  not  adduce  a  good  title.  The  plaintiff's  lease 
contained  a  covenant,  to  insure  and  keep  insured  the  prem- 
ises dm*ing  the  term,  with  a  proviso  of  forfeiture  and  reentry 
by  the  lessor  for  breach  of  covenant.  The  plaintiff  had 
insured,  but  had  not  paid  the  last  premium  previous  to  his 
agreement  with  the  defendant,  until  a  month  after  it  was 
due.  Held,  the  plaintiff  had  incurred  a  forfeiture,  which  the 
lessor  could  still  enforce,  notwithstanding  the  subsequent 
payment  and  acceptance  by  the  insurance  office  of  the  pre- 
mium ;  and  the  defendant  had  therefore  a  good  defence.^ 

36.  Premises  sold  at  auction  were  described  in  the  par- 
ticulars as  being  customary  leaseholds,  renewable  every 
twenty-one  years,  at  the  customary  rent  of  10s.,  on  payment 
of  the  customary  fine.  The  fourth  condition  of  sale,  after 
fixing  a  time  for  the  delivery  of  the  abstract  and  objections  to 
the  title,  stipulated,  that,  if  there  were  any  objection,  which 
the  vendor  should  be  unable  or  unwilling  to  remove,  he 
might  vacate  the  sale  on  repayment  of  the  deposit-money, 
without  interest  or  costs.  The  fifth  condition  stipulated, 
that  the  production  of  the  lease  by  the  vendor  should  be 

'  Elliot  V.  Edwards,  3  Bos.  &  Pull.        ^  Wilson  v.  Wilson,  25  Eng.  L.  & 
181.  Eq.  392. 

VOL.  II.  3 


26  LAW    OP   VENDORS   AND   PURCHASERS.        [ciI.  XXVII. 

accepted  a3  sufficient  evidence  of  the  lessor's  titU'.  Tlie 
sixtli  condition  stipulated  that  errors  of  description,  or  any 
errors  inserted  in  the  particulars,  should  not  vacate  the  sale, 
but  should  be  the  subject  of  abatement  or  compensation. 
It  turned  out  on  the  investigation  of  the  title,  what  was 
previously  unknown  to  all  the  parties  interested,  that  there 
was  no  custom  to  renew,  but  that  the  premises  were  held  for 
an  absolute  term  of  twenty-one  years.  Held,  the  fact  of  the 
property  being  sold  as  leaseholds  renewable  by  custom, 
when  there  was  no  such  custom,  was  an  error  of  description, 
not  a  defect  of  title.i 

37.  Also,  that  the  purchaser  was,  under  the  sixth  con- 
dition, entitled  to  specific  performance,  with  a  deduction 
from  the  price.'-^ 

38.  Declaration,  that  the  defendant  caused  to  be  put  up 
to  sale  by  auction  certain  premises,  for  the  residue  of  a  term 
of  years,  on  the  condition,  among  others,  that  the  defendant 
should  deduce  and  make  a  good  title  thereto,  commencing 
with  the  lease  under  which  they  were  then  held.  Breach, 
that  the  defendant  did  not  deduce  a  good  title  commencing 
with  the  lease.  Plea,  that  the  premises  were  premises  of 
which  the  defendant  was  possessed  under  a  mortgage  from 
the  plaintiff,  for  the  residue  of  the  term,  and  were  put  up  to 
sale  under  a  power  of  sale  in  the  mortgage ;  that,  before 
and  at  the  time  of  the  mortgage,  the  plaintiff  held  the  prem- 
ises under  a  lease  from  A.,  subject  to  a  covenant  by  the 
plaintiff  for  repair,  and  a  proviso  for  reentry,  or  the  cesser  of 
the  term,  at  the  option  of  A.  on  breach  .of  such  covenant ; 
that  the  plaintiff,  before  and  at  the  time  of  the  sale,  had  full 
knowledge  of  all  the  premises;  that  the  defendant  did  de- 
duce a  good  title,  commencing  with  the  lease,  in  all  respects 
except  this,  that  the  premises  were  out  of  repair,  of  which 
the  plaintiff  had  full  knowledge  ;  that  they  were  at  the  time 
of  the  sale  in  as  good  repair  as  at  the  time  of  the  mort- 
gage ;  and  that  A.  had  not  reentered  or  claimed  to  reenter, 

1  Newby  v.  Paynter,  19  Eng.  L.  &  Eq.  68.  '^  Ibid. 


CH.  XXVn.]  REQUISITES    OF   A   VALID   TITLE.  27 

or  in  any  way  avoided  the  lease.     Held  bad,  on  general 
demurrer.' 

39.  A  railway  company  served  a  land-owner  with  a  notice 
to  treat  for  the  purchase  of  a  portion  of  his  land.  The 
land-owner,  in  the  particulars  of  his  claim,  stated  that  he 
was  seized  in  fee-simple,  subject  to  an  unexpired  term,  and 
a  reserved  rent,  and  that  he  claimed  .£1,500  for  his  interest; 
which  the  company  agreed  to  pay.  An  abstract  of  title 
was  then  delivered  to  the  solicitor  of  the  company,  who  was 
also  informed  that  the  rent  was  payable  in  respect  of  other 
land  belonging  to  the  plaintiff  as  well  as  of  that  required  by 
the  company,  and  that  it  must  be  apportioned.  The  com- 
pany claimed  the  whole  rent,  and  refused  to  complete  their 
contract  on  any  other  terms.  On  a  bill  filed  by  the  land- 
owner against  the  company,  the  Court  decreed  specific 
performance.^ 

40.  If  there  be  a  covenant  for  title,  clear  of  incumbrances, 
where  there  are  unextinguished  ground-rents,  it  is  error  to 
instruct  the  jury  that  the  defect  may  be  compensated  by  a 
deduction  from  the  purchase-money.^ 

41.  Title  sometimes  depends  upon,  or  is  impaired  by  legal 
process ;  more  especially  judgments,  as  constituting  a  lien 
upon  land  sold. 

42.  In  1846,  the  plaintiff,  a  mortgagee  with  power  of  sale, 
under  a  mortgage  dated  in  January,  1844,  contracted  to  sell 
the  premises  to  the  defendant.  At  the  date  of  the  contract, 
the  premises  were  subject  to  two  judgments,  registered 
against  the  mortgagor  in  1843 ;  but  it  appeared  that,  on 
taking  his  mortgage,  the  plaintiff  also  took  an  assignment 
to  a  trustee  for  himself  of  the  residue  of  a  term  of  one 
thousand  years,  created  in  1818 ;  and  it  was  denied  by  the 
plaintiff  that  at  the  date  of  the  mortgage  he  had  notice  of 
the  judgments.  The  defendant,  who  had  been  let  into  pos- 
session, having  refused  to  pay  the  purchase-money,  the  suit 

1  Barnett  v.  Wheeler,  7  M.  &  W.  364.        ^  Q^ns  v.  Reushaw,  2  Barr,  34. 
-  luge  V.  Birmingham,  &c.  23  Eng. 
L.  &  Eq.  601. 


28  LAW   OF  VE!^DORS  AND   PURCHASERS.       [CH.  XXVII. 

was  instituted  for  specific  performance.  Shortly  afterwards, 
the  five  years  from  the  date  of  the  registration  of  the  judg- 
ments terminated,  without  a  registration  of  sucli  judgments 
having  been  made,  pursuant  to  Statute  2  Vict.  c.  11,  §  4; 
and  afterwards,  pending  the  suit,  one  only  of  such  judg- 
ments was  re-registered.  Held,  the  purchaser  could  not  be 
forced  to  take  a  conveyance,  except  upon  the  terms,  either 
of  the  concurrence  therein  of  the  judgment  creditor  who 
had  re-registered,  and  of  the  other  in  case  he  should  re- 
register, or  of  a  release  or  exoneration  of  the  premises  from 
the  judgments.^ 

43.  Conveyance  by  a  debtor  to  trustees,  his  creditors,  in 
trust  to  sell  and  pay  themselves,  and  the  surplus  proceeds  to 
the  debtor;  and  to  convey  to  him  the  lands  remaining  un- 
sold ;  the  receipt  of  the  trustees  to  be  a  sufficient  discharge 
to  a  purchaser ;  with  covenants  for  repayment  of  the  money 
by  a  certain  day,  for  good  title  and  quiet  enjoyment.  On  a 
sale  under  a  decree  to  execute  the  trusts ;  held,  that  judg- 
ments confessed  by  the  debtor  subsequent  to  the  deed,  and 
still  outstanding,  were  not  objections  to  the  title.^ 

44.  An  outstanding  docketed  judgment,  not  registered 
pursuant  to  the  provisions  of  the  Statutes  1  and  2  Vict.  c. 
110,  s.  19,  and  2  and  3  Vict.  c.  11,  ss.  2  and  3,  is  not  a  valid 
objection  to  the  title  of  a  vendor  on  the  sale  of  realty.'"^ 

45.  On  reference  of  title,  in  a  suit  by  a  vendor  for  specific 
performance,  a  subsequent  suit  still  pending  for  part  of  the 
lands,  claimed  adversely  to  the  vendor,  is  not  sufficient 
ground  for  reporting  against  the  title.* 

46.  An  act  of  bankruptcy  is  a  sufficient  objection  to  title 
without  showing  a  debt,  upon  which  a  commission  could 
issue.^ 

47.  So  an  act  of  bankruptcy  and  a  docket  struck,  though 
no  commission  issued,  are  a  sufficient  objection  to  a  bill  for 
specific  performance  of  a  previous  contract  for  the  sale  of 

1  Freer  v.  Hesse,  21  Eng.  L.  &  Eq.  82.        ^  Bedford  v.  Forbes,  1  Carr.  &  K.  33. 

2  Alexander  v.  Crosbie,  6  Ir.  Eq.  *  Osbaldeston  w.  Askew,  1  Russ.  160. 
Rep.  513.  5  Lowes  v.  Lush,  14  Ves.  547. 


CH.  XXVn.]  REQUISITES   OF   A   VALID   TITLE.  29 

an  estate  to  the  plaintiff;  in  a  case  even  where  part  of  the 
money  had  been  paid,  and  sub-contracts  for  sale  of  part 
entered  into  by  the  plaintiff;  and  the  defendants  had  agreed 
to  convey  accordingly.^  (a) 

48.  A  devisee,  subject  to  debts  and  legacies,  contracted  to 
sell  in  order  to  raise  money  to  pay  the  debts.  Afterwards  a 
bill  was  filed  against  her,  by  the  legatees  for  the  administra- 
tion of  the  testator's  estates,  and  the  purchaser  consented  to 
go  before  the  master  upon  a  reference  as  to  title  in  that 
suit.  Held,  he  was  not  thereby  bound  to  take  an  equitable 
title,  but  might  insist  on  having  the  same  title,  as  he  might 
have  required  if  a  suit  had  been  instituted  against  him  for 
specific  performance.  And,  as  two  commissions  of  bankrupt 
had  issued  against  the  devisee,  before  the  contract  was 
entered  into,  though  neither  of  them  was  proceeded  in,  he 
was  not  bound  to  accept  the  title.^ 

49.  Lands  were  settled  on  A.  for  life,  remainder  to  his 
wife  for  life,  remainder  to  their  children,  with  a  power  of 
revocation  and  appointment  to  new  uses  by  the  husband 
and  wife  jointly;  but  if  A.  should  become  bankrupt,  &c., 
the  limitation  to  him  for  life  should  cease,  and  the  lands 
should  go  to  trustees  during  his  life,  for  the  benefit  of  his 
wife  and  children.  A.  agreed  for  the  sale  of  this  estate, 
and  proposed  to  make  title  to  the  purchaser  by  executing 
this  power  of  revocation.  The  conveyance  on  the  part  of 
the  purchaser  required  an  indemnity  against  A.'s  having 
committed  any  secret  acts  of  bankruptcy,  for  that  the  power 
of  revocation  would  be  extinguished  by  the  forfeiture  of  the 
life  interest  of  A.  On  a  bill  filed  by  A.  to  compel  perform- 
ance, held,  there  was  no  ground  for  the  objection,  and  the 

1  Franklin  v.  Brownlow,  14  Ves.550.        ^  Cann  v.  Cann,  1  Sim.  &  Stu.  284. 


(a)  Upon  an  exchange  of  land,  it  is  no  objection  to  a  specific  execution, 
that  one  of  the  parties  has  become  insolvent,  if  the  Court  decree  a  convey- 
ance from  the  insolvent,  with  the  warranty  of  a  solvent  person  as  security. 
Tyree  v.  Williams,  3  Bibb,  366. 
3* 


30  LAW  OF  VENDORS  AND  PURCHASERS.    [CH.  XXVII. 

mistaken  opinion  of  the  conveyancer  could  not  save  the 
defendant  from  costs.^ 

50.  In  some  cases,  a  legal  title  may  be  presumed ;  and,  in 
matters  of  presumption,  the  Court  will  bind  a  purchaser, 
where  it  would  give  a  clear  direction  to  a  jury.^  Thus  a 
reconveyance  of  the  legal  estate  was  presumed  under  ob- 
scure circumstances,  after  a  great  lapse  of  time,  though  the 
possession  was  originally  not  adverse,  but  under  a  trust; 
and  upon  this  presumption  specific  performance  was  decreed 
against  a  purchaser.^^ 

51.  A  term  was  created  in  1711  for  raising  portions. 
There  was  no  evidence  of  the  portions  being  satisfied ;  but 
a  settlement  of  the  estate  took  place  in  1744,  and  a  recovery 
was  suffered  ;  and  there  was  a  covenant  that  the  estate  was 
firee  from  incumbrances.  No  assignment  appeared  to  have 
been  made  at  any  time  of  the  term.  On  an  objection  to 
the  title  by  a  purchaser,  held,  that  a  surrender  of  the  term 
must  be  presumed.* 

52.  It  was  held  to  be  no  objection  to  a  title,  that  two  fee 
farm  rents,  created  by  letters-patent  by  James  I.,  were  not 
shown  to  have  been  extinguished,  it  being  proved  that  no 
claim  had  been  made  by  the  Crown  of  the  rents  from  the 
year  1706,  and  there  being  no  proof  of  any  previous  claim.^ 

53.  But  it  has  been  held,  that  a  purchaser  is  not  compel- 
lable to  accept  a  title  to  premises,  formerly  subject  to  an 
incumbrance,  the  discharge  of  which  is  shown  only  by  pre- 
sumption. Thus  a  leasehold  was  sold,  subject  to  a  ground- 
rent,  which  was  said  to  be  apportioned  out  of  a  larger  rent ; 
but  the  apportionment  was  not  evidenced  by  any  existing 
deed,  but  only  by  the  acceptance  of  a  mesne  landlord,  and 
presumption.  Held,  that  the  purchaser  was  not  bound  to 
accept  the  title. ^ 

54.  A  title  may  be  gained  by  lapse  of  time  or  limitation^ 
as  well  as  by  direct  transfer  or  alienation.     Thus  it  has  been 

1  Maling  v.  Hill,  1  Cox,  186.  *  Emery  v.  Grocock,  6  Madd.  54. 

2  Emery  v.  Grocock,  6  Madd.  54.  ^  Simpson  v.  Gutteridge.  1  Madd.  609. 
8  Hillary  v.  Waller,  12  Ves.  239.  «  Barnwall  w.  Harris,  1  Taunt.  430. 


CH.  XXVn.]  REQUISITES   OF  A   VALID   TITLE.  "Si 

held,  that  sLxty  years'  possession  is  an  unobjectionable  title 
to  a  fee-simple.^  So  the  Court  will  compel  a  purchaser 
to  take  a  title,  depending  upon  parol  evidence  of  adverse 
possession  under  the  Statute  of  Limitations,  3  &  4  Will. 
IV.  c.  27.2 

55.  King  Charles  II.,  being  seized  in  fee  of  the  lands  of 
A.,  granted  them  by  letters-patent  to  B.  and  the  heirs  male 
of  his  body,  reserving  a  yearly  rent,  equal  in  amount  to  the 
quit-rent  which  would  be  payable,  if  they  had  been  granted 
in  fee.  The  reserved  rent  was  thereupon  put  in  charge  in 
the  Crown  rentals,  as  if  it  were  a  quit-rent,  and  so  con- 
tinued. Subsequently,  in  1776,  the  estate  tail  determined, 
by  failure  of  the  issue  male  of  B.,  and  ever  afterwards 
the  person  deriving  under  the  patentee  continued  in  posses- 
sion, claiming  in  fee  simple,  and  paying  the  rent  reserved  in 
the  letters-patent,  as  quit-rent.  The  lands  having  been  de- 
creed to  be  sold;  held,  upon  exception  to  a  report  of  good 
title,  that  the  title  of  the  Crown  was  barred  and  transferred 
to  the  vendor  by  the  operation  of  the  48  Geo.  III.  c.  47,  and 
the  exception  was  overruled.^ 

56.  Upon  the  same  principle,  it  was  held  that  a  deed, 
under  which  lands  had  been  claimed  forty  years,  purporting 
to  be  executed  before  the  Mayor  of  Georgetown,  though 
without  covenants,  seal  of  the  Mayor,  or  certificate  that  he 
was  Mayor,  could  not  be  objected  to  by  the  vendee  as  a 
defect  in  the  title.* 

67.  A  title  may  be  questionable,  as  derived  from  a  mar- 
ried woman  or  an  infant.  Thus  an  estate  was  settled  to 
the  husband  and  wife  successively  for  life,  with  remainder 
to  their  children,  as  they  should  appoint,  and,  in  default  of 
appointment,  between  such  children.  The  husband  and  wife 
incumbered  their  life  interests,  and,  having  seven  children, 
appointed  the  whole  estate  to  the  eldest  daughter.  Soon 
after,  the  husband,  wife,  and  daughter  mortgaged  the  prop- 

1  Barnwall  v.  Harris,  1  Taunt.  430.  »  Tuthill  v.  Rogers,  1  Jo.  &  Lat.  36. 

2  Scott  V.  Nixon,  3  Dm.  &  Warr.  388.        *  Brown  v.  Witter,  10  Ohio,  142. 


32  LAW   OF   VENDORS   AND   PUHCIIASERS.       [ciI.  XXVII. 

erty  witli  power  of  sale.  The  mortgagee  sold  to  the  plain- 
tiff; and,  after  the  title  had  been  approved,  one  of  the 
younger  children  gave  notice  to  the  plaintiff  not  to  complete, 
and  that  the  appointment  was  a  fraud  on  the  marriage  set- 
tlement ;  and  also  cautioning  the  purchaser  not  to  pay  the 
purchase-money.  Held,  no  objection  to  the  title,  and  that 
the  purchaser  must  complete  the  sale.^ 

58.  Devise  to  A.  for  life,  remainder  to  B.  for  life,  remain- 
der to  his  sons  successively  in  tail  male.  A.  and  B.,  during 
the  infancy  of  B.'s  eldest  son,  obtained  an  Act  of  Parlia- 
ment, vesting  the  estates  in  trustees,  in  trust  to  sell.  Held, 
that  A.  and  B.  must  covenant  with  the  purchaser  for  the 
title.2 

59.  It  is  no  objection  to  a  sale  in  Court  in  execution  of  a 
will,  that  there  are  infants  interested  under  the  will,  who 
cann'ot  join  in  the  conveyance.^ 

60.  Two  persons,  one  an  infant,  being  joint  claimants  of 
a  lot,  the  elder  sells  it,  and  covenants  to  deliver  the  deed  of 
both,  upon  payment  of  the  purchase-money.  The  whole 
price  falls  due,  payment  is  enforced,  and  the  deed  made  and 
tendered  before  the  infant  attains  to  majority.  Held,  the 
vendee  cannot  object  to  the  deed,  on  account  of  the  infancy.^ 

61.  A  vendor  dying  intestate,  and  leaving  an  infant  heir, 
the  purchase-money,  being  paid  into  Court  in  a  suit  for  a 
specific  performance  instituted  after  his  death,  will  be  re- 
tained till  the  heir  attains  twenty-one  and  conveys.^ 

62.  Conditions  of  sale,  after  stating  that  the  estate  was 
by  settlement  limited  to  Mrs.  C.  for  life,  with  remainder  to 
trustees  in  trust  to  sell  for  the  benefit  of  her  children,  pro- 
ceeded as  follows :  "  And  there  being  three  such  children 
only,  all  of  whom  have  attained  the  age  of  twenty-one,  such 
children  or  their  trustees  shall,  if  required,  join  in  the  con- 
veyance to  the  purchaser ;  but  no  objection  to  the  title  of 
the  vendors  shall  be  made  on  account  of  the  sale  taking 

1  Green  v.  Pulsford,  2  Bear.  70.  *  Beckwith  v.  Marryman,  2   Dana, 

2  London  Bridge,  &c.  13  Sim.  176.        371. 

3  Powell  V.  rowell,  6  Madd.  53.  ^  Bullock  v.  Bullock,  1  Jac.  &  W.  603. 


CH.  XXVn.]  REQUISITES   OF  A   VALID   TITLE.  88 

place  during  the  life  of  Mrs.  C."  Two  of  the  children  of 
Mrs.  C.  were  married  women,  having  children  who  were 
minors,  and  they  had  settled  their  portion  of  the  money  to 
arise  from  the  sale  of  the  estate  in  trust  for  themselves  for 
life,  with  remainder  to  their  children.  Held,  that  neither  the 
children  of  Mrs.  C.  nor  the  trustees  had  legal  capacity  to 
join  in  a  conveyance,  and,  therefore,  a  purchaser  was  entitled 
to  recover  the  deposit.' 

63.  The  following  miscellaneous  principles  and  cases  may 
properly  be  stated,  in  connection  with  the  subject  of  this 
chapter. 

64.  A  reservation  of  salt-works,  mines,  &c.,  in  1704,  with 
a  right  of  entry,  though  there  was  no  instance  of  any  claim, 
and  the  tjitle  had  been  transferred  in  1761,  without  such 
reservation  upon  the  usual  covenants,  was  held  an  objection 
to  the  title,  giving  a  right  to  compensation,  the  purchaser 
not  insisting  upon  it  further ;  the  Court  being  of  opinion 
that  the  inference  of  abandonment  of  a  right  from  non-user 
is  not  applicable  to  the  case  of  mines.^ 

65.  Commissioners  under  an  inclosure  act  were  empow- 
ered to  allot  common  lands  among  the  proprietors  of  com- 
mon lands  in  the  parish,  and  to  assign  any  messuages, 
buildings,  new  allotments  and  old  inclosures,  in  exchange 
for  others  ;  so  that  such  exchange  should  be  ascertained  in 
the  commissioners'  award  or  in  some  deed  executed  by  them, 
and  be  made  with  the  consent  in  writing  of  the  respective 
proprietors.  An  appeal  was  provided  to  the  quarter  sessions 
in  six  months  after  cause  of  complaint.  The  commissioners, 
among  other  things,  awarded  to  A.,  in  respect  of  an  estate 
of  his  in  the  parish,  rented  by  B.  and  C,  furze  close  of  five 
acres,  and  hill  close  of  four  acres,  late  A.'s  land ;  and  to  D., 
a  proprietor  of  meadow  and  arable  land  in  the  parish,  in 
respect  of  his  freehold  estate,  two  acres  of  arable  called 
Shortlands,  late  a  common  field,  and  sixteen  acres  of  old 
inclosure  called  Stearts,  late  A.'s ;  without  saying  that  the 

1  Moseley  v.  Hide,  6  Eng.  L.  &  Eq.        ^  geaman  v.  Vawdrey,  16  Ves.  390. 
247. 


84  LAW  OF  VENDORS  AND  PURCHASERS.   [cn.  XXVII. 

several  closes  had  been  given  in  exchange  for  each  other, 
but  conchiding  the  award  with  an  approbation  of  the  ex- 
changes made  between  A.  and  D.  There  was  no  consent 
in  writing  by  A.  or  D.  Held,  in  1813,  D.  could  make  no 
title  to  Stearts  or  Shoi'tland,  the  lands  awarded  him,  though 
they  had  been  in  his  possession  ever  since  the  execution  of 
the  award  in  1798.1 

66.  Trustees  were  empowered  by  Act  of  Parliament  to 
sell  and  exchange  all  or  any  of  the  hereditaments  mentioned 
in  the  schedule  to  the  act,  amongst  which  was  a  farm,  called 
the  Mountain  Farm,  parcel  of  the  manor  of  W.  In  the 
body  of  the  act  there  was  a  proviso,  that  the  manor  of  W. 
should  not  be  sold.  The  trustees  having  contracted  to  sell 
the  Mountain  Farm  ;  held,  the  purchaser  was  not  bound  to 
accept  the  title.^ 

67.  It  is  a  sufficient  objection  to  a  title,  that  a  person 
under  whom  the  vendors  claim  held,  during  his  seizin  of 
the  estate,  a  newly-created  office  under  the  Crown,  (that  of 
Commissioner  of  Dutch  Property,)  in  which  he  was  directed 
by  statute  to  pay  the  surplus  (after  certain  charges  an- 
swered) of  the  proceeds  of  certain  sales  into  the  Bank  of 
England,  there  to  remain  subject  to  such  orders  as  the  king 
in  council  should  give  thereon,  and  that  his  accounts  with 
the  Crown  were  not  yet  liquidated  ;  the  lands  being  liable 
to  an  extent  under  the  Stat.  18  Eliz.  c.  4,  and  at  common 
law  also.^ 

68.  By  conditions  of  sale  it  was  stipulated,  that  the  ven- 
dor of  an  estate,  sold  in  lots,  should  deliver  an  abstract  of 
the  title  to  the  purchasers,  and  deduce  a  good  title  ;  but,  as 
to  a  part  of  the  estate,  acquired  under  an  inclosure,  should 
not  be  bound  to  show  any  title  prior  to  the  award ;  that  he 
should  deliver  up  to  the  largest  purchaser  in  value  all  the 
title  deeds  and  other  documents  in  his  custody,  but  should 
not  be  required  to  produce  any  original  deed  or  other  docu- 

1  Cox  V.  Kins,  3  Bing.  N.  C.  795.  ^  -Wilde  v.  Fort,  4  Taunt.  334. 

2  Lincoln  v.  Arcedeckne,  1  Coll.  98. 


CH.  XXVII.]  REQUISITES   OF   A   VALID   TITLE.  35 

merits  than  those  in  his  possession  and  set  forth  in  the 
abstract.  Held,  the  conditions  did  not  relieve  the  vendor 
from  verifying  the  title  shown  upon  the  abstract,  by  produc- 
ing the  title  deeds  themselves,  or,  if  any  of  them  were  not 
in  his  possession,  by  other  satisfactory  evidence.  A  vendor, 
to.  exonerate  himself  from  the  production  of  any  evidence 
necessary  to  verify  the  title  beyond  what  the  title-deeds  in 
his  own  custody  will  supply,  is  bound  so  to  inform  the*  pur- 
chaser in  clear  and  explicit  terms.' 

69.  The  question  of  time,  as  an  essential  element  of  the 
contract,  has  already  been  fully  considered.  (Chap.  11.)  It 
may  be  added  in  this  connection,  that  the  Court  will  not 
annul  a  sale  for  want  of  title,  without  giving  the  vendor  a 
reasonable  opportunity  in  point  of  time,  to  make  an  imper- 
fect title  sufficient.  Thus,  if  the  vendor  be  willing,  ready, 
and  able  to  make  title  at  the  time  when  he  has  contracted 
so  to  do,  it  is  immaterial  that  he  had  no  title  at  the  date  of 
his  contract,  especially  where  the  vendee,  at  both  periods, 
has  notice  of  the  facts  of  the  case.^  So,  where  a  vendor, 
who  has  covenanted  to  make  a  good  title  upon  payment  of 
the  balance  of  the  purchase-money,  sues  for  such  balance, 
and,  being  called  upon  to  make  good  his  covenant,  presents 
a  title  which  is  defective  in  some  particulars ;  if  the  ven- 
dee has  not  been  compromitted  to  the  acceptance  of  such 
title,  the  Court  should  allow  to  the  vendor  a  certain  time 
within  which  to  perfect  the  title,  the  collection  of  the  money 
to  be  suspended  in  the  mean  time ;  and,  if  it  should  be  out 
of  his  power  to  perfect  the  title,  then  the  vendee  i^iould  be 
required  to  accept  the  vendor's  deed  with  warranty,  or  to 
restore  the  premises,  and  equitably  account  for  the  rents  and 
profits.^  So,  if  one  agrees  to  sell  an  estate,  and  it  is  after- 
wards discovered  that  a  small  portion  of  it  is  the  property  of 
another  person,  the  Court  will  not  discharge  the  purchaser 

1  Southby  V.  Hutt,  2  Myl.  &  C.  207.      ell   v.   Eobinson,    5   Scott,    196.      See 

2  Tison  V.  Smith,  8  Tex.  147 ;  ace.     Shaw  v.  Rowley,  16  M.  &  W.  810. 
Webb  V.  Austin,  7  M.  &  G.  701  ;  Stow-        ^  jones  v.  Taylor,  7  Tex.  240. 


36  LAW   OF   VENDORS   AND   PURCHASEIIS.        [cil.  XXVU. 

from  his  contract,  without  giving  the  seller  an  opportunity 
of  acquiring  a  title  to  that  portion.' 

70.  A  person  contracted  to  sell  an  estate,  who  had  no 
legal  or  equitable  title  to  it,  by  reason  of  the  alienage  of  a 
party  through  whom  he  claimed.  The  purchaser,  by  his 
own  inquiries,  ascertained  the  defect  of  title,  but  did  not,  till 
after  some  months  of  negotiation  with  the  vendor,  repudiate 
the  <!ontract.  The  vendor  then  filed  his  bill  for  specific 
performance,  and,  pending  the  investigation  of  the  title  in 
the  Master's  oflice,  obtained  a  grant  of  the  estate  from  the 
Crown.     Held,  that  he  was  entitled  to  a  decree.^ 

71.  Sale  by  auction  on  the  following  conditions :  the  pur- 
chaser to  pay  a  deposit  of  ten  per  cent.,  and  sign  an  agree- 
ment for  the  payment  of  the  balance  of  the  price  on  or 
before  November  28th;  a  proper  abstract  to  be  delivered 
within  fourteen  days  from  the  sale,  and  a  good  title  deduced 
at  the  vendor's  expense,  having  regard  to  the  conditions,  but 
not  fixing  any  time  ;  the  conveyance  to  be  prepared  by  and 
at  the  cost  of  the  purchaser,  and  left  with  the  vendor's  solici- 
tors for  execution  on  or  before  November  10th;  all  objec- 
tions to  the  title  to  be  communicated  to  the  vendor's  solici- 
tors within  twenty-eight  days  from  delivery  of  the  abstract. 
The  purchaser  brings  an  action  against  the  vendor  for  the 
deposit,  on  the  ground  that  he  had  not  deduced  a  good  title 
by  the  28th  of  November.  Held,  on  special  demurrer,  that 
the  declaration  was  bad,  for  not  alleging  that  a  reasonable 
time  for  deducing  a  good  title  had  elapsed  before  suit  com- 
menced.^ 

72.  A  party  holding  a  bond  for  title  to  three  sixteenths  of 
a  tract  of  land,  conditioned  that,  if  certain  ore  upon  the 
premises  should  prove  to  be  good  siver  ore,  he  was  to  pay  a 
specified  sum,  and  if  not,  the  sale  to  be  void,  sold  one  six- 
teenth absolutely,  the  grantee  knowing  the  terms   of  the 

1  Chamberlain  v.  Lee,  10  Sim.  444.  ^  Sansom  v.  Rhodes,  8  Scott,  544. 

2  Evston  V.  Symonds,  1  Y.  &  Coll. 
C.  C.  '608. 


CH.  XXVII.]  REQUISITES    OF   A    VALID    TITLE.  37 

grantor's  purchase,  and  the  grantor  being  guilty  of  no  fraud 
or  misrepresentation.  Held,  the  latter  sale  was  valid,  and 
the  grantor  was  entitled  to  a  reasonable  time  in  which  to 
perfect  his  title.^ 

73.  Where  a  title  bond  binds  the  obligor  to  convey  a  cer- 
tain quantity  of  land  in  one,  two,  or  three  surveys,  as  the 
obligee  may  choose,  the  former  is  not  bound  to  convey,  until 
the  latter  has  made  his  selection,  and  had  the  land  surveyed. 
And,  there  being  a  latent  ambiguity  in  the  description  of  the 
land  sold,  which  can  only  be  cleared  up  by  an  actual  survey, 
it  is  error  to  decree  a  rescission  of  the  contract  until  a  survey 
has  been  made,  so  as  to  enable  the  Court  to  decide  whether 
the  obligor  can  comply  with  his  contract  or  not.''^ 

74.  The  same  favorable  principle  in  regard  to  the  rights 
of  a  vendor  has  been  adopted  with  reference  to  the  title- 
deeds. 

75.  Agreement  on  the  sale  of  an  estate,  that  the  title- 
deeds  should  be  delivered  to  the  purchaser  on  the  completion 
of  the  contract ;  but,  as  the  deeds  related  also  to  other 
property  belonging  to  the  vendors,  the  purchasers  should 
enter  into,  or  procure  to  be  entered  into,  one  or  moi:e  proper 
and  sufficient  covenant  or  covenants  with  the  vendors  for 
the  production  and  delivery  of  copies  of  such  deeds.  The 
purchasers  were  trustees,  and  entered  into  the  contract  in 
pursuance  of  the  directions  in  the  will  of  their  testator,  for 
the  investment  of  his  personal  estate  in  the  purchase  of 
lands,  to  be  settled  to  certain  uses  creating  estates  for  life, 
with  remainder  over  in  strict  settlement.  The  estate  was 
conveyed  by  the  vendors  to  the  purchasers  to  the  uses  de- 
clared by  the  will  of  their  testator.  Held,  that  the  agree- 
ment, to  enter  into  a  proper  and  sufficient  covenant  for  the 
production  of  the  deeds,  did  not  mean  that  the  vendors 
should  be  entitled  to  a  covenant  which  would  secure  to 
them  their  production  at  all  times  and  under  all  circum- 
stances ;   that  the  words  sufficient  and  proper  were   to  be 

1  Reeves  v.  Dickey,  10  Gratt.  138.  ^  Purcell  v.  McCleary,  10  Gratt-  246. 

VOL.  II.  4 


38  LAW  OF  VENDORS  AND  PURCHASERS.    [CH.  XXVII. 

construed  together ;  that  the  mode  of  taking  the  conveyance 
must  in  a  great  degree  determine  the  meaning  and  suf- 
ficiency of  the  covenant ;  that  the  releasees  to  uses,  like 
trustees,  would  ordinarily  be  required  to  covenant  only  for 
their  own  acts ;  and  the  Court  would  not  require  the  pur- 
chasers, being  such  releasees,  to  covenant  as  demanded, 
especially  after  the  uses  were  executed  by  the  statute.^ 

1  Onslow  V.  Londesborough,  17  Eng.  L.  &  Eq.  542. 


CH.  XXVIir.]  INDEPENDENT   COVENANTS,    ETC.  39 


CHAPTER    XXVIII. 

INDEPENDENT  COVENANTS  IN  A  CONTRACT  OF  SALE  AND  PUR- 
CHASE.— EXCEPTIONS  TO  THE  RULE  OF  REQUIRING  THE  VENDOR 
TO  CONVEY  A  GOOD  TITLE. 

1.  Although  the  contract  of  sale  and  purchase,  as  has 
been  stated,  is  in  general  mutual  and  conditional,  so  that 
the  vendor  cannot  enforce  performance,  without  fulfilling  his 
own  part  of  the  agreement ;  yet  this  construction  depends 
upon  the  circumstances  of  the  case,  and  the  peculiar  phrase- 
ology used  by  the  parties,  and  will  not  be  adopted,  where, 
from  the  language  used,  they  appear  to  have  intended  other- 
wise, or  where  substantial  justice  requires  a  different  con- 
struction, (a)     Several  old  and  leading  cases  may  be  cited, 

(fl)  No  subject  has  been  more  prolific  of  nice  distinctions  and  conflicting 
decisions,  than  that  of  the  dependence  or  independence  of  covenants, 
entered  into,  respectively,  by  the  parties  to  a  contract.  As  the  cases  do 
not  pertain  wholly  or  chiefly  to  the  sale  and  purchase  of  real  property,  it 
would  be  foreign  from  our  plan  to  do  more  than  state  the  general  principles 
which  may  now  be  considered  as  settled  by  the  weight  of  authority. 

In  Kingston  v.  Preston,  Dougl.  690,  Lord  Mansfield  says :  "  There  are 
three  kinds  of  covenants — 1st,  such  as  are  called  mutual  and  independent, 
where  either  party  may  recover  damages  from  the  other  for  the  injury  he 
may  have  received  by  a  breach  of  the  covenants  in  his  favor,  and  where  it 
is  no  excuse  for  the  defendant  to  allege  a  breach  of  the  covenants  on  the 
part  of  the  plaintifi".  2dly.  There  are  covenants  which  are  conditions  de- 
pendent on  each  other,  in  which  the  performance  of  one  depends  on  the 
prior  performance  of  the  other,  and  therefore  till  this  prior  condition  be 
performed,  the  other  party  is  not  liable  to  an  action  on  his  covenant. 
3dly.  There  is  also  a  third  sort  of  covenants  which  are  mutual  conditions  to 
be  performed  at  the  same  time ;  and  in  these,  if  one  party  was  ready,  and 
offered  to  perform  his  part,  and  the  other  neglected  or  refused  to  perform 


40  LAW    OF   VENDORS    AND    PURCHASERS.       [CII.  XXVIII. 

to  illustrate  this  exception.     Thus,  where  A.  covenants  with 
B.  to  marry   his  daughter,  and  B.  covenants  to  convey  an 


his,  he  who  was  ready  and  oflercd  lias  fulfilled  his  enga<renient,  and  may 
maintain  an  action  for  the  default  of  the  other,  though  it  is  not  certain  that 
either  is  obliged  to  do  tlie  first  act.  The  dependence  or  independence  of 
covenants  is  to  be  collected  from  the  evident  sense  and  meaning  of  the 
parties,  and  however  transposed  they  may  be  in  the  deed,  their  precedency 
must  depend  on  the  order  of  time  in  which  the  intent  of  the  transaction 
requires  their  performance." 

It  is  farther  said,  by  a  writer  of  high  authority,  "  Almost  all  the  old  cases, 
and  many  of  the  modern  ones  on  this  subject,  are  decided  upon  distinctions 
so  nice  and  technical,  that  it  is  very  difficult,  if  not  impracticable,  to  deduce 
from  them  any  certain  rule  or  principle  by  which  it  can  be  ascertained, 
what  covenants  are  independent,  and  what  dependent,  and  of  course,  when 
it  is  necessary  to  aver  performance  in  the  declaration,  and  when  not." 
1  Wms.  Saun.  320,  n.  4.  "  The  Judges  in  these  tases  seem  to  have  founded 
their  construction  of  the  independency  or  dependency  of  covenants  or 
agreements  on  artificial  and  subtle  distinctions,  without  regarding  the  intent 
and  meaning  of  the  parties.  Covenants  are  construed  to  be  either  depend- 
ent or  independent  of  each  other,  according  to  the  intention  and  meaning  of 
the  parties,  and  the  good  sense  of  the  case ;  and  technical  words  should  give 
way  to  such  intention.  The  following  rules  are  to  determine  the  question  : 
1.  If  a  day  be  appointed  for  payment  of  money,  or  part  of  it,  or  for  doing  any 
other  act,  and  the  day  w  to  happen,  or  may  happen,  before  the  thing  which 
is  the  consideration  of  the  money,  or  other  act,  is  to  be  performed  ;  an 
action  may  be  brought  for  the  money,  or  for  not  doing  such  other  act  before 
performance,  for  it  appears  that  the  party  relied  upon  his  remedy^  and  did 
not  intend  to  make  the  performance  a  condition  precedent.  And  so  it  is 
where  no  time  is  fixed  for  performance  of  that,  which  is  the  consideration  of 
the  money  or  other  act.  2.  When  a  day  is  appointed  for  the  payment  of 
the  money,  &c.,  and  the  day  is  to  happen  after  the  thing  which  is  the  con- 
sideration of  the  money,  &c.,  is  to  be  performed,  no  action  can  be  maintained 
for  the  money,  &c.,  before  performance.  3.  Where  a  covenant  goes  only 
to  part  of  the  consideration  on  both  sides,  and  a  breach  of  such  covenant 
may  be  paid  for  in  damages,  it  is  an  independent  covenant,  and  an  action 
may  be  maintained  for  a  breach  of  the  covenant  on  the  part  of  the  defend- 
ant, without  averring  performance  in  the  declaration.  4.  But  where  the 
mutual  covenants  go  to  the  whole  consideration  on  both  sides,  they  are 
mutual  conditions  and  performance  must  be  averred."     lb.  320  a,  b,  c. 

Some  further  tests  of  the  dependence  or  independence  of  covenants  have 
been  suggested  by  Judges  and  elementary  writers  ;  such  as,  the  provision 


CH.  XXVIII.]  INDEPENDENT   COVENANTS,   ETC.  41 

estate  to  A.  and  the  daughter,  in  special  tail,  it  is  said,  that 
though  A.  marry  another  woman,  or  the  daughter  another 


that  tbe  acts  on  the  one  side  and  the  other  are  to  be  done  at  the  same  time  ; 
the  nature  of  the  acts  to  be  performed,  and  the  order  in  which  they  must 
necessarily  precede  or  follow  each  other;  the  fact  that  one  act  is  the  consid- 
eration for  the  other  ;  and  the  use  of  the  participle,  "  doing,"  "  performing," 
&c.,  which,  prefixed  to  a  covenant  by  another  person,  is  said  to  be  a 
mutual  I  (independent)  covenant,  and  not  a  condition  precedent.  See  1 
Chit.  PI.  313-5  ;  2  Pars,  on  Contr.  40  and  n.  It  would  seem,  however,  that 
this  is  an  unnecessary  amplification  of  the  different  classes  of  covenants, 
and  involves  the  subject  in  needless  intricacy,  because,  as  has  been  already 
remarked,  nearl}'  all  these  artificial  rules  are,  by  the  later  authoi'ities,  made 
to  yield  to  the  intent  of  the  parties  and  the  justice  of  the  case. 

The  following  remarks  may  be  cited,  as  showing  that  covenants  are  to  be 
construed,  with  reference  to  the  point  now  under  consideration,  rather  by 
the  apparent  intent  than  by  any  more  technical  standard  : — 

"  If  a  party  promise  to  build  a  house  upon  the  land  of  another,  and  to 
dig  a  well  on  the  premises,  and  to  place  a  pump  on  it;  and  the  owner  of 
the  land  covenants  seasonably  to  supply  all  materials  and  furnish  a  pump ;  it 
is  very  clear  that  the  stipulation  to  furnish  materials  is  dependent,  and  con- 
stitutes a  condition,  because  the  builder  cannot  perform  on  his  part  until  he 
has  the  materials.  So  to  put  a  pump  into  the  well.  But  the  stipulation  to 
dig  a  well  is  not  conditional,  because  it  goes  to  a  small  part  only  of  the  con- 
sideration, and  does  not  necessarily  depend  on  a  prior  performance,  on  the 
part  of  the  owner,  and  because  a  failure  can  be  compensated  in  damages, 
and  the  remedy  of  the  owner  is  by  action  on  the  contract."  Per  Shaw,  C.  J., 
Knight  V.  N.  E.  Worsted  Co.,  2  Cush.  286. 

"  When  the  act  of  one  party  must  necessarily  precede  any  act  of  the 
other,  as  where  one  stipulates  to  manufacture  an  article  from  materials  to  be 
furnished  by  the  other,  and  the  other  stipulates  to  furnish  the  materials,  the 
act  of  furnishing  the  materials  necessarily  precedes  the  act  of  manufacturing 
and  will  constitute  a  condition  precedent,  wiUaout  express  words."  Per 
Shaw,  C.  J.,  Milldam,  &c.  v.  Hovey,  21  Pick.  439. 

Upon  the  same  principle,  a  very  late  case  was  decided  in  Massachusetts. 
The  defendant  covenanted  with  the  plaintiffs  to  proceed  to  California,  as 
one  of  a  joint-stock  company,  and  labor  there  for  two  years,  and  to  remit 
the  plaintiffs  one  half  of  the  net  proceeds  of  one  share  in  the  company,  so 

1  This  word  is  ordinarily  used  in  the  sense  of  conditional  or  dependent,  but 
sometimes,  either  designedly  or  inadvertently,  in  the  directly  contrary  sense  of 
unconditional  and  independent. 

4  * 


42  LAW    OF   VENTDORS    AND    PURCHASERS.       [Cll.  XXVIII. 

• 

man,  still  A.  may  have  an  action  against  B.  on  the  cov- 
enant ;  but  if  B.  had  covenanted  to  convey  the  estate  for 
the  cause  aforesaid,,  the  marriage  is  a  condition  precedent, 
and  no  action  w^ill  lie  until  it  be  solemnized.'  So,  where  one 
covenanted  with  his  copyholder,  to  assure  to  him  and  his 

1  15  H.  7,  10,  pi.  17  ;  Bio.  Covenant,  22. 


often  as  dividends  should  be  made.  The  other  members,  while  on  the  way 
to  California,  contrary  to  the  defendant's  wishes,  abandoned  the  enterprise, 
and  sold  their  vessel  and  cargo.  Held,  the  defendant  was  not  liable  on  his 
covenant  to  proceed  to  California.  Bigelow,  J.,  says,  in  substance,  "  It  is 
necessary  to  consider  the  situation  of  the  parties,  the  subject-matter  of  the 
contract,  and  the  purposes  and  objects  to  be  accomplished  by  it.  The 
defendant,  it  is  true,  agreed  with  the  plaintiffs  to  go  to  California  and  to 
remain  there  for  two  years,  and  it  appears  that  he  failed  to  comply  with  this 
stipulation.  If  nothing  further  appeared,  the  plaintiffs  would  have  shown  a 
breach  of  the  agreement,  for  which  they  would  be  entitled  to  damages.  But 
it  is  necessary  to  bear  in  mind  with  whom,  how,  and  for  what  purpose  he 
was  to  go  there.  He  was  not  to  go  alone,  upon  his  individual  responsibility, 
to  trade  and  labor  for  the  benefit  of  the  plaintiffs  and  himself.  He  was  to 
proceed  thither  as  one  of  a  company  or  copartnership,  of  which  the  plaintiffs 
and  others  were  members.  It  was  a  joint  enterprise  or  adventure,  in  which 
the  capital,  industry,  and  energy  of  each  member,  or  a  sub.stitute  to  be 
approved  by  the  company,  were  to  be  combined  for  the  mutual  benefit  and 
profit  of  all.  The  plaintiffs  had  no  right,  under  this  contract,  to  require 
the  defendant  to  give  his  individual  time  and  services  to  them,  disconnected 
from  those  who  had  agreed  to  render  theirs  in  carrying  on  the  joint  enter- 
prise."    Field  V.  Woodmancy,  10  Cush.  427,  431,  432. 

The  course  of  decisions  upon  this  subject  has  been  exceedingly  variable 
in  different  Courts,  and  elaborately  decided  cases  have  been  often  over- 
ruled by  subsequent  ones  in  the  same  Court.  Thus  the  cases  of  Terry  v. 
Duntze,  2  H.  Bl.  389  ;  Seers  v.  Fowler,  2  Johns.  272  ;  and  Havens  v.  Bush, 
lb.  387,  which  were  supposed  unreasonably  to  extend  the  generally  correct 
principle,  of  construing  covenants  to  be  wholly  independent  where  any  part 
of  the  one  is  to  be  performed  before  execution  of  the  other,  were  overruled 
in  Cunningham  v.  Morrell,  10  Johns.  203.  So  the  cases  of  Craddock  v.  Al- 
dridge,  2  Bibb,  15,  and  Mason  v.  Chambers,  4  Litt.  253,  which  adopted  the 
same  doctrine,  were  overruled  in  M'Lane  v.  Rush,  9  Dana,  64,  and  Allen  v. 
Sanders,  7  B.  Mon.  593.  So  also  the  decision  of  the  Supreme  Court  of 
New  York,  in  Grant  v.  Johnson,  6  Barb.  337,  was  subsequently  reversed, 
1  Seld.  247. 


CH.  XXVIII.]  INDEPENDENT   COVENANTS,   ETC.  43 

heirs  the  freehold  and  inheritance  of  his  copyhold,  and  the 
copyholder,  in  consideration  of  the  same  performed,  cov- 
enanted to  pay  a  certain  sum ;  held,  a  condition  precedent, 
and  the  party  must  make  the  assurance  before  he  could 
claim  the  money  ;  otherwise,  had  the  words  been,  in  consid- 
eration of  the  said  covenant  to  be  performed.^ 

2.  Articles  of  agreement  between  A.  and  B.  A.  covenants 
that,  for  the  consideration  thereafter  expressed,  he  will  con^ 
vey  lands  to  B.  in  fee,  and  B.  for  the  consideration  aforesaid 
covenants  to  pay  a  certain  sum  to  A.  Held,  independent 
covenants,  and  that  A  might  bring  an  action  for  the  money 
before  any  conveyance  of  the  lands.- 

3.  The  plaintiff  conveyed  to  the  defendant  the  equity  of 
redemption  of  a  plantation  in  the  West  Indies,  with  the 
stock  of  negroes  upon  it,  in  consideration  of  ^£500  and  an 
annuity  of  X160  for  life,  and  covenanted  that  he  had  a  good 
title  to  the  plantation,  was  lawfully  possessed  of  the  negroes, 
and  that  B.  should  quietly  enjoy.  The  defendant  covenant- 
ed, that,  the  plaintiff  well  and  truly  performing  all  and 
everything  contained  on^his  part  to  be  performed,  he  would 
pay  the  annuity.  In  an  action  on  the  defendant's  covenant, 
for  non-payment  of  the  annuity,  the  plea  was,  that  the 
plaintiff  was  not  at  the  time  legally  possessed  of  the  negroes, 
and  so  had  not  a  good  title  to  convey.  The  Court  of  King's 
Bench,  on  demurrer,  held  the  plea  bad,  remarking  that,  if 
such  plea  were  allowed,  any  one  negro,  not  being  the  prop- 
erty of  the  plaintiff,  would  bar  the  action.^ 

4.  As  has  been  already  explained,  the  mutuality  of  the 
contract  of  sale  and  purchase  has  been  chiefly  illustrated,  in 
requiring  the  vendor  to  make  a  perfect  title  to  the  vendee, 
involving,  of  course,  not  merely  the  execution  of  a  convey- 
ance, but  also  the  transfer,  by  means  of  such  conveyance,  of 
an  absolute  ownership  or  property  in  the  land.  On  the 
other  hand,  the  doctrine,  that  the  covenants  of  vendor  and 


'  Brocas'  case,  3  Leon.  219.  ^  Boone  v.  Eyre,  1  H.  Bl.  273. 

^  RoUe's  Abr.  41.5,  pi.  8. 


44  LAW   OF   VENDORS   AND   PURCHASERS.      [CH.  XXVIII. 

vendee  are  independent,  has  been  chiefly  applied,  in  giving 
the  former  a  claim  upon  the  latter  without  any  performance 
on  his  own  part.  But  the  subordinate  question  also  arises, 
whether,  even  where  the  stipulations  are  dependerrt,  the 
special  terms  of  the  contract  are  not  satisfied  by  the  mere 
execution  of  a  conveyance,  although  insufficient  to  pass  a 
perfect  title ;  the  vendor  himself  not  having  such  title.  Some 
cases  are  found  in  the  books  which  thus  restrict  the  vendor's 
obligation.  Thus  it  is  held,  that,  under  a  contract  for  the 
sale  and  purchase  of  lands,  equity  will  decree  a  good  and 
sufficient  conveyance  to  be  made  upon  payment  of  the  pur- 
chase money.'  And  it  has  been  further  held,  in  Massachu- 
setts, in  construction  of  the  terms  "  good  and  sufficient " 
that  a  contract  to  execute  and  deliver  a  good  and  svfficient 
warranty  deed  of  land  is  not  a  contract  to  convey  a  good 
title.  Therefore  a  declaration,  alleging  as  a  breach  that  the 
defendant  had  no  legal  and  valid  title,  is  insufficient.^  It  is 
said,  "  the  words  '  good  and  sufficient '  relate  only  to  the 
validity  of  the  deed  to  pass  the  title,  which  the  defendants 
had,  to  the  plaintiff",  and  do  not  imply  that  their  title  was 
valid,  or  that  it  was  free  from  incumbrances.  To  guard 
against  any  defect  of  title  a  covenant  of  warranty  was  pro- 
vided for ;  which  shows  clearly  that  the  agreement  was  so 
understood  by  the  parties.  If  any  authority  were  necessary 
to  support  so  plain  a  construction  of  the  contract,  the  case 
of  Gazley  v.  Price,  16  Johns.  268,  will  be  found  full  and  de- 
cisive as  to  this  point."  ^ 

5.  So,  in  the  case  in  New  York  just  referred  to,  (s.  4,)  it 
is  held,  that,  when  the  plaintiff"  covenants  to  give  a  good  and 
sufficient  deed  on  a  certain  day,  and  the  defendant  covenants 
on  the  same  day  to  pay  part  of  the  consideration,  and  secure 
the  residue,  the  covenant  is  performed  by  the  plaintiff''s  de- 
livering a  deed,  sufficient  in  law  to  pass  any  title  which  he 
may  have,  but  without  covenant  or  warranty ;  and  the  plain- 

1  Murphy  v.  McVicker,  4  McLean,  ^  Pd-  Wilde,  J.  Tinney  v.  Ashley, 
252.  15  Pick.  552. 

-  Tinney  v.  Ashley,  15  Pick.  546. 


CH.  XXVIir.]  INDEPENDENT    COVENANTS,    ETC.  45 

tiff,  in  an  action  of  covenant  on  the  agreement  to  recover  the 
consideration,  having  averred  that  he  had  given  a  deed,  a 
plea  that  the  plaintiff  was  not  seized,  and  had  not  power  to 
sell,  is  bad.^ 

6.  Other  cases  have  occurred  in  the  same  State,  to  the 
same  effect. 

7.  Agreement,  to  "  execute  a  deed  to  (the  vendee)  his 
heirs  and  assigns  forever."  Held,  the  vendor  was  bound 
only  to  give  a  conveyance  or  assurance  of  the  property, 
without  warranty  or  personal  covenants.^  The  Court  say, 
"  by  covenanting  to  execute  a  deed,  no  greater  duty  or  obli- 
gation can  be  intended  than  to  execute  a  conveyance  or 
assurance  of  the  property,  which  may  be  good  and  perfect, 
without  warranty  or  personal  covenants.  In  the  case  of 
Frost  and  others  v.  Raymond,  2  Caines'  Rep.  191,  it  is 
stated,  in  the  opinion  of  the  Court,  to  be  a  settled  position, 
that  an  estate  in  fee  may  be  created  by  the  usual  and  solemn 
forms  of  conveyance,  without  warranty,  express  or  implied  ; 
and  that  a  conveyance  in  fee  does  not,  ipso  facto,  imply  a 
warranty ;  that  if  it  did,  our  books  would  be  inconsistent 
and  unintelligible  on  the  subject.  The  case  of  Nixon  v. 
Hyserott,  5  Johns.  58,  supports  the  same  principle,  and  shows 
that  a  general  power  to  execute  a  deed  does  not  authorize 
the  giving  it  with  the  usual  covenants  of  warranty,  &c.  It 
is  evident,  then,  that  where  it  is  contracted  to  execute  a 
deed,  as  in  this  case,  to  the  plaintiff,  his  heirs  and  assigns, 
forever,  no  covenant  of  any  description  can  be  intended, 
either  by  implication  or  otherwise  ;  nor  will  the  circum- 
stance of  the  sale  being  at  auction  vary  the  result."^ 

8.  So  an  agreement  to  give  a  deed  of  land  was  held  to  be 
satisfied  by  a  quit-claim  deed  without  covenants.*  "  Courts 
of  Law  can  exaqt  no  more  of  parties  than  the  performance 
of  their  contracts,  according  to  the  intention  manifested  by 

'  Gazley  v.  Price,  16  Johns.  267.  ^  Pej.  Yates,  J.    A^  Johns.  442-3. 

2  Van  Eps  y.  Schenectady,  12  Johns.  *  Ketchum  v.    mKn-tsou,   13   Johns 

436.     A  case   said    to    be   "  very  well  359. 
considered."     16  Johns.  269. 


46  LAW    OF   VENDORS    AND    PURCHASERS.      [CII.  XXVIII. 

the  terms  used  by  them.  When,  therefore,  it  is  agreed  that 
a  deed  shall  be  given,  nothing  more  can  be  exacted  than  an 
instrument  sufficient  to  pass  the  estate  of  the  party  who  is 
to  give  a  deed.  If  it  be  required  that  the  deed  should  con- 
tain covenants  of  warranty,  nothing  is  more  simple  than 
the  insertion  of  that  stipulation.  A  deed  does  not,  ex  vi 
termini,  mean  a  deed  with  covenants  of  warranty,  but  only 
an  instrument  with  apt  terms  conveying  the  property 
sold."i 

9.  So  the  words  "  a  good  warranty  deed  of  conveyance," 
were  held  to  relate  to  the  instrument  of  conveyance,  not  to 
the  title. ^  (a) 

1  Per  Spencer,  J. ;  13  Johns.  364.  2  Parker  v.  Parmcle,  28  Johns.  130. 


(a)  With  reference  to  the  cases  in  New  York,  referred  to  in  the  text,  it 
is  to  be  remarked,  that  they  do  not  conform  to  the  current  of  decisions  in 
other  Courts,  and  can  hardly  be  considered  to  express  the  existing  rule  of 
law  in  that  State.  Thus,  in  the  case  of  Ketchum  v.  Evertson,  (p.  45,)  it  was 
remarked,  in  connection  with  the  point,  that  under  the  form  of  sale  there 
proved  no  release  of  dower  was  necessary ;  "  had  the  agreement  been,  that 
the  defendant  should,  by  deed,  vest  the  title  to  the  lands  sold,  in  the  plain- 
tiffs, then  the  plaintiffs  would  ^ave  had  a  right,  if  the  entire  legal  title  was 
in  the  defendant,  so  that  the  wife  might  have  been  endowed  of  the  land  in 
case  of  her  survivorship,  to  insist  on  her  joining  in  the  deed."  So  in  Gazley 
V.  Price,  (p.  45,)  the  Court  comment  with  approbation  upon  the  prior  case  of 
Jones  V.  Gardner,  10  Johns.  266,  which  was  as  follows  :  Covenant  to  give  a 
good  and  sufficient  deed  in  law  to  vest  the  purchaser  with  the  title  of  the 
farm  of  land,  with  the  appurtenances.  The  vendor's  wife  did  not  duly 
execute  the  deed.  Held,  the  deed  was  not  a  fulfilment  of  the  contract, 
because  the  agreement  bound  the  vendor  to  give  a  deed  which  should  pass 
the  legal  estate  in  fee,  free  and  clear  of  all  valid  claims,  liens,  and  incum- 
brances. (Ace.  Thrasher  v.  Pinckard,  23  Ala.  616;  Stevens  v.  Hunt,  15 
Barb.  1 7.)  So  a  very  recent  case  decides,  that  a  covenant  to  sell  and  convey 
land  by  warranty  deed  is  not  answered  by  the  delivery  of  a  deed  with  the 
usual  covenant  of  warranty,  so  as  to  pass  whatever  estate  the  grantor  has 
in  the  lands,  but  should  also  be  an  operative  conveyance,  and  pass  to  the 
grantee  a  perfect  title.     Atkins  v.  Bahrett,  19  Barb.  639. 

And  the  forme^ecisions  may  perhaps  be  regarded  as  virtually  overruled 
by  the  case  of  Fleroher  v.  Button,  4  Comst.  396,  6  Barb.  646,  where  a  con- 
tract to  give  a  good  and  sufficient  deed  of  land,  free  from  all  incumbrances, 


CH.  XXVIII.]  INDEPENDENT   COVENANTS,   ETC.  47 

was  held  not  to  be  satisfied  by  a  warranty  deed,  the  grantor  not  having  the 
legal  title.     Ruggles,  J.,  says  :  "  I  think  the  defendant  is  mistaken  in  assum- 
ing that  a  deed  which  conveyed  no  title  would  have  been  a  performance  of 
his  contract.    There  are,  however,  two  cases  which  give  countenance  to  the 
defendant's  construction  of  the  bond  in  this  respect.     The  one  is  Gazley  v. 
Price,  (16  Johns.  267,).the  other  is  that  of  Parker  v.  Parmelee,  (20  Johns. 
130.)     But  the  reasoning  in  that  case  falls  short  of  showing  that  a  covenant 
to  execute  a  good  and  sufficient  deed  of  conveyance  is  satisfied  by  a  deed 
which  conveys  nothing.     It  is  difficult  to  reconcile  these  cases  with  Clute  v. 
Robinson,  2  Johns.  21.3,  and  Judson   v.  Wass,  11  Id.  525,  and  Van  Eps  v. 
Schenectady,  12  Id.  436.     In  the  first-mentioned  case,  Chief  Justice  Kent 
says:  "  A  covenant  to  execute  a  good  and  sufficient  deed  of  a  piece  of  land, 
does  not  mean  merely  a  conveyance  good  in  point  of  form.     That  would  be 
a  covenant  without  substance.     But  it  means  an  operative  conveyance,  one 
that  carries  with  it  a  good  and  sufficient  title  to  the  lands."     In  Judson  v. 
Wass,  the  plaintiff  agreed  to  execute  and  acknowledge  a  deed  to  the  pur- 
chaser with  warranty  of  title  except  as  to  the  quit-rents  on  certain  lots. 
This  was  held  to  mean  not  merely  that  he  would  execute  a  deed  containing 
such  a  covenant,  but  that  he  had  the  power  to  give  a  deed  which  would 
convey  with  it  an  indefeasible  title  to  the  lots  subject  to  no  other  incum- 
brance or  charge  than  that  specified  in  the  agreement.    The  learned  .Judge 
proceeds   to   remark   that  the  case  of  Van  Eps  v.  Schenectady,   (p.  45,) 
although  deciding  that  a  deed  without  covenants  was  a  compliance  with 
the  conditions  of  sale  in  that  case,  yet  also  decided  that,  in  order  to  be  so, 
such  deed  must  actually  convey  the  land  ;  and  as  the  deed  in  question  did 
not  thus  convey  it,  the  purchase-money  sWild  be  recovered  back.     So  in 
Atkins  V.  Barrett,  19  Barb.  639,  Brown,  J.^rays:  "  In  Carpenter  v.  Bailey, 
(17  Wend.  244,)  the  cases  of  Gazley  v.  Price  and  Parker  v.  Parmele  were 
in  effect  overruled.     In  Pomeroy  v.  Drury,  (14  Barb.  418,)  the  late  Mr. 
Justice  Barculo  declares  it  '  safe  to  say  that  (these  cases)  are  no  longer 
authorities  for  holding  that  a  covenant  to  convey  lands  by  warranty  deed 
or  on  sale,  refers  only  to  the  form  and  sufficiency  of  the  deed,  and  not  to 
the  title  conveyed.' "     After  an  elaborate  and  careful  examination  of  the 
authorities,  he  arrives  at  the  conclusion,  that  "  when  a  man  buys  a  piece  of 
land  and  contracts  for  a  conveyance,  in  general  terms  the  presumption  is 
that  he  expects  the  title,  and  the  grantor  should  be  required  to  give  him  a 
perfect  title." 

The  following  terms  in  the  contract  of  a  vendor  have  been  held  to  require 
the  conveyance  of  a  good  title  : — 

Covenant  to  execute  a  good  and  valid  deed  of  land,  with  the  usual  cov- 
enants.    Stone  V.  Stevens,  7  Verm.  27;  Lawrence  v.  Dole,  11,  549. 

Covenant  to  give  a  "  good  and  perfect  deed."     Greenwood  v.  Ligon,  10 
Sm.  &  M.  615  ;  Feemster  v.  May,  13,  275. 


48  LAW    OF    VENDORS   AND    PURCHASERS.      [cil.  XXVIII. 

To  give  a  "  warranty  deed,  free  and  <.lc'ar  of  all  incumbrances."  Porter 
V.  Noyes,  2  Greenl.  22. 

To  "  sell  and  convey,  the  title  to  be  a  good  and  sudicient  deed."  Brown 
f.  Gannon,  14  Maine,  276. 

To  "  execute  a  proper  deed,  conveying  the  lee-simple,  with  full  cov- 
enants."    Traver  v.  Halsted,  23  Wend.  66. 

To  "grant,  convey,  and  assure,  by  a  good  and  sufficient  deed,  to  be  made 
and  executed  according  to  law,  with  proper  covenants  of  seizin,  right  to 
convey,  against  incumbrances  and  of  warranty."  Little  v.  Paddleford,  13 
N.  H.  167. 

To  convey  "  by  a  good  and  sufficient  warranty  deed,  in  fee-simple,  free 
and  clear  of  all  incumbrances."     Everson  v.  Kirtland,  4  Paige,  G28. 

To  "  make  a  lawful  title."     Clark  v.  Redman,  1  Blackf.  380. 

To  "  give  a  good  and  sufficient  deed,  with  covenant  of  warranty."  Tin- 
dall  V.  Conover,  1  Spenc.  214. 

In  Hill  V.  Hobart,  16  Maine,  164,  Shepley,  J.,  says  :  "  Without  asserting 
that  they  (the  decisions)  can  all  be  perfectly  reconciled,  it  is  believed,  that 
the  general  principle  to  be  collected  from  them  is,  that  when  the  contract 
stipulates  for  a  conveyance  of  the  land  or  estate,  or  for  the  title  to  it,  per- 
formance can  be  made  only  by  the  conveyance  of  a  good  title.  And  when 
it  stipulates  only  for  a  deed,  or  for  a  conveyance  by  a  deed  described,  per- 
formance is  made  by  giving  such  a  deed  or  conveyance  as  the  contract 
describes,  however  defective  the  title  may  be." 

The  following  recent  cases  may  be  cited,  as  illustrating  the  general  sub- 
ject of  this  chapter  : — 

In  an  action  of  covenant  in  U^  nature  of  a  bill  for  specific  performance, 
on  an  agreement  to  convey  lUi  in  fee-simple  free  from  incumbrances,  it 
was  held  to  be  sufficient  for  the  vendor  to  prove,  that  he  had  paid  a  judg- 
ment which  was  a  lien,  though  satisfaction  was  not  entered  on  the  docket, 
and  tendered  a  deed  in  fee-simple  with  special  warranty ;  and  that  it  was 
not  necessary  for  him  to  tender  the  whole  chain  of  title.  Espy  v.  Anderson, 
14  Penn.  308. 

Plaintifi"  sold  to  the  defendant  a  tract  of  land  for  $7,969,  payable  in  sev- 
eral instalments.  When  $2,000  were  paid,  he  was  to  convey  certain  parts 
of  it.  Plaintiff  also  agreed,  that  he  would  see  that  "  Stanley  street  was 
continued  and  opened  to  the  defendant's  north  line  ; "  and  that,  when  the 
contract  had  expired,  and  the  payments  were  all  made,  he  would  convey 
the  premises.  "In  an  action,  brought  before  all  the  payments  were  due, 
held,  the  plaintiff  was  not  obliged  to  continue  and  open  Stanley  street  until 
all  the  payments  were  made  ;  that  the  defendant  was  not  entitled  to  recoup6- 
inent  for  damages  occasioned  by  non-fulfilment  by  the  plaintiff  of  his  engage- 
ments, and  that  from  the  contract  and  circumstances,  it  was  not  the  intention 


CH.  XXVIII.]  INDEPENDENT    COVENANTS,    ETC.  49 

of  the  parties,  that   Stanley  street  was  to  be  opened  in  a  reasonable  time. 
Farmers,  &c.  v.  Hunt,  16  Barb.  514. 

A.  contracted  to  execute  to  B.  a  quitclaim  deed  of  certain  premises,  and 
afterwards  gave  him  a  certificate,  that  at  the  making  of  the  contract  he 
consented  and  agreed  he  should  take  possession  forthwith.  Held,  B.  could 
not  maintain  an  action  against  A.  for  damages,  because  a  third  person  had 
intruded  upon  a  portion  of  the  premises,  and  kept  B.  out  of  possession,  there 
being  no  agreement  to  put  B.  in  possession.  Tewksbury  v.  Laffan,  1  Cal. 
129. 


VOL.  II. 


.00  LAW    OF   VENDORS   AND    PURCHASERS.  [CH.  XXIX. 


CHAPTER    XXIX. 

PARTICULAR    ACTS   TO    BE   DONE    BY    THE   VENDOR,   IN    ORDER   TO 

ENFORCE    THE   CONTRACT. TENDER    OF    DEED,    BY    WHOM    TO    BE 

MADE. — OFFER     OR     READINESS     TO    PERFORM,    WHETHER     SUF- 
FICIENT.  ALLEGATIONS   AND    PROOF. 

1.  Having  considered  the  general  question,  as  to  the  obli- 
gation upon  a  vendor  of  making  a  good  title,  in  order  to 
enforce  the  contract  against  the  vendee  ;  we  proceed  to 
point  out  the  particular  allegations  and  proofs  involved  in 
this  requisition. 

2.  One  of  the  most  important  inquiries  upon  this  subject 
is,  whether  the  vendor  is  bound  to  prepare  and  tender  a 
deed.  As  has  been  already  stated,  (Chap.  12,)  the  English 
law  does  not  impose  this  duty  upon  the  vendor,  but  requires 
the  purchaser  to  prepare  the  deed  and  ojfFer  it  to  the  vendor 
for  execution.  The  history  and  reasons  of  this  rule,  which 
has  been  generally  reversed  in  the  United  States,  and  indeed 
does  not  seem  to  accord  with  the  natural  and  usual  course 
of  dealing  in  a  mutual  transaction,  are  thus  stated  by  Mr. 
Sugden : — 

3.  "  A  purchaser  cannot  maintain  an  action  for  breach  of 
contract,  without  having  tendered  a  conveyance,  and  the 
purchase-money.  It  was  always  clear  that  the  vendor  need 
not  tender  a  conveyance  where  the  purchaser  was  required 
to  prepare  it  or  to  bear  the  expense  of  it.  But  the  general 
proposition  was  rendered  doubtful  by  some  recent  dicta  of 
the  Judges,  that  it  is  incumbent  on  the  vendor  to  prepare 
and  tender  a  conveyance,  which,  as  a  general  rule,  certainly 
seems  to  have  prevailed  when  the  simplicity  of  the  common 
law  prevailed,  and  possession  was  the  best  evidence  of  title ; 


CH.    XXIX.]      ACTS    OF   PERFORMANCE.— TENDER,   ETC.  51 

but  upon  the  introduction  of  modifications  of  estates,  un- 
known to  the  common  law,  and  which  brought  with  them 
all  the  difficulties  that  surround  modern  titles,  it  became 
necessary  to  make  an  abstract  of  the  numerous  instruments 
relating  to  the  title,  for  the  purpose  of  submitting  it  to  the 
purchaser's  counsel ;  and  it  then  became  usual  for  him  to 
prepare  the  conveyance.  This  practice  has  continued,  and 
is  now  the  settled  rule  of  the  profession  ;  the  rule  is,  indeed, 
sometimes  departed  from,  but  this  seldom  happens,  except 
in  the  country,  and  it  always  arises  from  consent,  or  express 
stipulation.  In  a  late  case,i  this  point  came  distinctly  be- 
fore the  Court  of  Exchequer,  and  it  was,  in  conformity  to 
the  practice  of  the  profession,  decided,  that  the  purchaser, 
and  not  the  vendor,  is  bound  to  prepare  and  tender  the  con- 
veyance. In'  the  early  case  of  Webb  v.  Bettel,^  the  same 
rule  was  expressly  recognized  by  Windham,  J.,  and  denied 
by  no  one.  He  said  '  that  where  a  person  is  to  execute  a 
conveyance  generally,  there  the  counsel  of  the  purchaser  is 
intended  to  draw  it,  and  then  the  purchaser  ought  to  tender 
it.'  It  is  settled,  that  if  a  conveyance  is  to  be  prepared  at 
the  expense  of  a  purchaser,  he  is  bound  to  tender  it.  Now 
it  is  admitted  on  all  hands,  that  the  expense  of  the  convey- 
ance must  be  borne  by  the  purchaser,  if  there  be  no  express 
stipulation  to  the  contrary.  Therefore,  where  there  is  no 
such  stipulation,  the  purchaser  is  bound  to  tender  the  con- 
veyance. In  a  late  case  in  the  Court  of  Exchequer,  where 
a  lease  was  to  be  prepared  at  the  sole  expense  of  the  lessor, 
it  was  held  that  he  was  to  prepare  it,  and  not  the  lessee.  It 
may  be,  indeed,  that  one  may  be  bound  by  the  express 
terms  of  a  contract  to  prepare  a  lease  or  conveyance,  and 
yet  that  it  shall  be  paid  for  by  another,  for  such  stipulations 
are  not  inconsistent ;  but  where  all  that  is  stipulated  for  is, 
that  it  shall  be  prepared  at  the  expense  of  the  lessor,  and 
there  is  no  contract  to  explain  it,  it  must  be  intended  that 
the  lessor  is  to  prepare  it  also.     Upon  the  whole,  notwith- 

'  Baxters.  Lewis,  1  Forr.  Exch.  61.  ^1  Lev.  44. 


o2  LAW    OF   VENDORS    AND   PURCHASERS.         [CII.  XXIX. 

standing  the  recent  dicta  to  the  contrary,  we,  may  be  war- 
ranted in  saying  that  the  purchaser,  and  not  the  vendor, 
ought  to  prepare  and  tender  the  conveyance.  And  so  the 
point  has  been  finally  decided.'  But  although  a  purchaser 
is  expressly  required  to  prepare  a  conveyance,  yet  if  a  bad 
title  be  produced,  he  may  maintain  an  action  for  recovery  of 
his  deposit,  without  tendering  a  conveyance.  So  where  a 
vendor  has,  by  selling  the  estate,  incapacitated  himself  from 
executing  a  conveyance  to  the  first  purchaser,  that  renders 
further  expense  and  trouble  on  his  part  unnecessary ;  and  he 
may  accordingly  sustain  an  action  without  tendering  a  con- 
veyance or  the  purchase-money."  - 

4.  Agi'eeably  to  these  views,  in  England,  it  is  incumbent 
on  the  vendee  to  prepare  the  conveyance,  even  where  the 
agreement  is  silent  on  the  subject.-^  And,  more  especially, 
a  stipulation,  that  the  conveyance  should  be  at  his  own  ex- 
pense, is  equivalent  to  a  provision  that  he  should  prepare  it.* 

5.  But,  as  stated,  (s.  2,)  the  English  rule  on  this  subject 
has  not  been  for  the  most  part  adopted  in  the  United  States ; 
for  the  many  sufficient  reasons  set  forth  in  some  of  the 
cases  which  we  proceed  to  cite  ;  and  it  may  be  laid  down 
as  the  prevailing  doctrine  of  American  law,  that  the  vendor 
is  bound  to  prepare  and  tender  the  conveyance,  more  espec- 
ially where  a  definite  time  is  fixed  by  the  contract,  or  where 
the  price  or  any  part  of  it  has  been  paid  or  secured.  Whether 
the  vendee  is  bound  to  demand  a  deed,  before  proceeding 
against  the  vendor  for  n  on -performance  of  the  contract,  is  a 
point  somewhat  unsettled,  and  depending  on  the  language 
of  the  agreement,  and  the  circumstances  of  the  case.  But 
he  is  not  himself  bound  to  prepare  and  tender  the  deed. 

6.  Thus  it  is  held  in  Massachusetts,  that  a  party,  who 
contracts  to  execute  and  deliver  a  deed,  is  bound  to  prepare 
the  deed,  if  there  be  no  stipulation  that  it  shall  be  prepared 
by  the  grantee.^     "  K  the  law  of  England  is  otherwise,  it 

1  Stephens  v.  Medina,  3  Gale  &  Dav.  ^  poole  v.  Hill,  6  M.  &  W.  835  ;  Bax- 
110.  ter  V.  Lewis,  I  Forr.  61. 

-  1  Sngd.  308-11.  *  Seward  v.  Willock,  5  E.  198. 

s  Tinney  v.  Ashley,  15  Pick.  546. 


CH.  XXIX. ]      ACTS    OF   PERFORMANCE. TENDER,   ETC.  o3 

must  be  founded  on  custom  and  practice  and  not  on  any 
legal  principle  independently  of  practice."^ 

7.  In  New  York,  where  it  was  formerly  held  that  the 
vendee  must  make  a  double  demand  for  a  deed,  (see  Chap. 
12,)  which  somewhat  anomalous  doctrine  has,  however,  been 
since  overruled,  the  Court  say,  "  It  may  be  considered  the 
rule  of  this  Court,  that  when  a  party  covenants  to  convey,  he 
is  not  in  default  until  the  party  who  is  to  receive  the  con- 
veyance, being  entitled  thereto,  has  demanded  it,  and  having 
waited  a  reasonable  time  to  have  it  drawn  and  executed,  has 
made  a  second  demand.  In  England,  the  party  entitled  to  the 
deed  is  bound  to  have  it  drawn  and  presented  for  execution; 
we  have  not  gone  so  far ;  the  party  who  is  to  give  a  deed, 
certainly  should  have  it  drawn  at  his  own  expense,  but  upon 
such  a  covenant  as  that  declared  on  in  this  case,  (a  covenant 
to  convey  by  a  day  certain)  the  covenantor  is  not  bound  to 
prepare  the  conveyance  until  it  is  demanded,  when  it  is  his 
duty  to  execute  and  perfect  the  conveyance  with  all  reason- 
able dispatch,  and  hold  it  ready  for  delivery  when  called 
for."  2 

8.  In  Carpenter  v.  Brown ,^  Gridley,  J.,  says:  ''  There  was 
no  necessity  for  the  announcement  of  such  a  doctrine  (the 
necessity  of  a  second  demand)  in  that  case.  The  remark 
was  obiter,  and  we  think  is  not  the  law  of  the  land."  He 
proceeds  to  remark,  that,  where  the  time  for  delivering  a 
deed  is  not  specified  in  the  contract,  a  reasonable  time 
should  perhaps  be  allowed  after  a  demand.  But  where  the 
time  is  fixed,  one  demand  is  sufficient,  even  if  any  is  requi- 
site. And  the  doctrine,  that  the  vendee  must  prepare  and 
tender  a  deed,  is  still  more  explicitly  disavowed. 

9.  In  Pennsylvania,  the  English  doctrine  is  also  rejected 
for  the  reasons  thus  assigned :  "  Sugden  founds  his  opinion 
on  the  modern  practice  of  conveyances  in  England,  and  con- 
fesses, that  formerly  the  conveyance  was  prepared  by  the 

1  Per  Wilde,  J.,  Ibid.  552.  ^  6  Barb.  149. 

^  Per    Savage,   C.   J..    Connellv   v. 
Pierce,  7  Wend.  131. 

5* 


r)4  LAW    OF   VENDORS   AND    PURCHASERS.  [CH.  XXIX. 

seller.  The  change  which  has  taken  place  in  the  practice, 
he  attributes  to  the  difficulties  which  surround  titles  of  land, 
since  the  introduction  of  the  mode  of  conveying  founded  on 
the  statute  of  uses;  but  even  now,  it  is  incumbent  on  the 
seller  to  furnish  an  abstract  of  all  the  title  papers,  to  be 
submitted  to  the  purchaser's  counsel.  Sugden  confesses, 
also,  that  by  some  recent  dicta  of  eminent  Judges,  it  is  in- 
cumbent on  the  seller  to  prepare  and  tender  a  conveyance. 
It  is  evident,  however,  that  what  may  be  a  very  convenient 
practice  in  England,  may  be  very  inconvenient  here.  We 
have  not  yet  introduced,  and  it  is  unnecessary  that  we 
should  introduce,  the  intricacies  and  expenses  of  English 
conveyancing,  which  have  been  much  increased  by  the  uni- 
versal practice  of  marriage  settlements.  In  the  present  situ- 
ation of  the  country,  there  is  no  difficulty  in  preparing  a 
deed  of  conveyance,  and,  therefore,  no  pretence  for  dispens- 
ing with  what  appears  to  be  the  plain  meaning  of  the 
parties ;  that  is  to  say,  that  when  the  seller  covenants,  that 
he  will  convey  the  title  to  the  purchaser,  (without  any  men- 
tion of  such  conveyance  as  the  purchaser  shall  devise,  &c.,) 
he  shall  himself  prepare  and  tender  the  deed  of  convey- 
ance." ^ 

10.  In  Mississippi,  in  the  case  of  Johnston  v.  Beard,^  the 
Court  say,  "  in  England,  the  party  entitled  to  the  deed  is 
bound  to  have  it  prepared,  and  presented  for  execution. 
The  purchaser  is  to  be  at  the  expense  of  the  conveyance. 
We  need  not  now  determine  which  of  these  is  the  correct 
rule,  (viz  :  this,  or  the  New  York  rule  as  to  demanding  a 
conveyance,)  since  one  or  the  other  undoubtedly  is.  If 
either  be  adopted  this  declaration  is  bad."  In  the  subse- 
quent case  of  Standifer  v.  Davis,'5  the  Court  distinctly  hold, 
that  it  is  sufficient  for  the  vendee  to  demand  a  deed  from 
the  vendor,  without  himself  preparing  it. 

11.  But,   in    Arkansas,  the    Court   have    adhered  to   the 

1  Per  Tilghman.  C.  J.,    Sweitzer  v.  ^  7  gm.  &  M.  217. 

Hummell.  3  S.  &  R.  230-1.  ^  13  g^.  &  m.  52. 


CII.  XXIX.]      ACTS    OF   PERFORMANCE. — TENDER,    ETC.  55 

English  rule.  Lacy,  J.,  says :  "  The  reasonableness  or  jus- 
tice of  the  rule  may  be  somewhat  difficult  to  discover  at  the 
present  day,  but  the  principle  being  unquestionably  settled, 
it  would  work  injustice  and  wrong  now  to  change  it,  and 
we  are  not  at  liberty  to  do  so  to  remedy  a  partial  evil.  We 
are  not  aware  of  any  adjudication  to  the  contrary,  except  a 
few  eases  in  Blachford's  Reports,  and  some  loose  dicta 
thrown  out  by  the  English  Judges ;  and  these  are  wholly 
insufficient  to  overrule  the  general  current  of  both  English 
and  American  authorities ;  and  that  too  where  the  point  has 
been  expressly  and  solemnly  ruled  on  many  occasions."  ' 

12.  Contrary  to  the  rule  as  to  a  tender  of  money,  that,  in 
order  to  be  available,  it  must  be  absolute  and  unconditional; 
the  tender  of  a  deed  by  the  vendor,  where  the  covenants  are 
mutual,  is  not  required  to  be  made,  but  with  the  qualifica- 
tion that  the  vendee  shall,  concurrently  with  the  acceptance 
of  it,  fulffi  his  part  of  the  contract  by  payment  of  the  con- 
sideration. Thus,  in  assumpsit  by  the  vendor  against  the 
vendee  of  land,  for  not  accepting  it  and  paying  the  purchase- 
money,  the  plaintiff  averred  that  he  was  seized  in  fee,  and 
that  the  defendant  agreed  to  purchase,  on  having  a  good 
title,  and  that  his  title  was  made  good,  perfect,  and  satisfac- 
tory to  the  defendant,  and  that  he  had  been  always  ready 
and  willing,  and  offered,  to  convey  to  the  defendant,  but  th§ 
defendant  did  not  pay  the  purchase-money.  On  demurrer, 
held,  that  these  general  allegations  were  tantamount  to  an 
averment  of  performance  by  the  plaintiff,  and  entitled  him 
to  recover  for  non-payment  of  the  purchase-money.'^ 

13.  The  plaintiff  covenants  to  sell  a  house  to  the  defend- 
ant for  a  certain  sum,  the  defendant  covenanting  to  pay  the 
plaintiff  that  sum  on  the  day  when  the  house  shall  be  fin- 
ished and  the  key  delivered  to  the  defendant,  with  a  satis- 
factory deed  and  title,  free  of  all  incumbrances.  Held,  that 
the  covenants  were  dependent,  and  that  the  plaintiff  was 
not  bound  to  make  an  unconditional  tender  of  a  deed,  unless 

'  Byers  i'.  Aiken,  5  Pike,  421.  -  Mimin  v.  Smith.  6  E.  555. 


OG  LAW    OP   VENDOllri   AND    PUkCJIASERS.  [oil.  XXIX. 

the  defendant  was  willing  to  accept  it  and  pay  the  purchase- 
money.^  Wilde,  J.,  says,  the  plaintilT  "was  not  bound  to 
make  an  unconditional  tender  of  a  deed,  unless  the  other 
party  was  willing  to  accept  it  and  to  pay  the  purchase-money. 
An  offer  to  perform  the  contract  on  his  part,  he  having  the 
ability  to  perform  it,  and  a  refusal  by  the  testator  to  perform 
his  part  of  the  agreement,  amount  clearly  to  a  breach."  - 

14.  The  defendant  stipulated  to  pay  a  sum  of  money,  on 
the  plaintiff's  assigning  to  him  an  equity  of  redemption. 
The  declaration  averred  that  the  plaintiff  was  ready  and 
willing  and  offered  to  assign,  and  tendered  a  draft  of  an 
assignment  to  the  defendant  for  his  approbation,  and  offered 
to  execute  and  deliver,  and  would  have  executed  and  de- 
livered such  assignment  to  the  defendant,  but  that  he  abso- 
lutely discharged  the  plaintiff  from  executing  the  same  or 
any  assignment  whatever,  and  had  not  paid  the  money.  On 
demurrer,  the  declaration  was  held  sufficient.^ 

15.  It  has  been  held,  that,  where  the  power  to  perform  a 
covenant  on  the  part  of  the  plaintiff  depends  on  an  act 
previously  to  be  done  on  the  part  of  the  defendant,  it  is 
unnecessary  for  the  plaintiff  to  aver  a  tender  and  refusal ; 
an  averment  of  readiness  to  perform  is  sufficient.  Thus, 
where  the  defendant  covenants  to  convey,  and  the  plaintiff 
covenants  to  execute  a  bond  and  mortgage  for  the  land,  it  is 
sufficient  for  the  plaintiff  to  aver  his  readiness  to  perform.* 
But,  in  a  late  case,  where  a  vendor  covenanted  to  execute 
and  deliver  a  deed,  and  the  vendee  to  execute  and  deliver, 
when  the  deed  should  be  tendered,  a  bond  and  mortgage  for 
the  agreed  price  ;  a  declaration  that  the  vendee  oflered  to 
make  and  deliver  the  bond  and  mortgage,  without  averring 
a  tender,  and  requested  the  former  to  make  and  deliver  a 
deed,  which  he  refused  to  do,  was  held  to  be  insufficient.^ 

16.  The  defendant  purchased  a  leasehold  estate,  at  auc- 
tion, a  condition  of  which  was,  that  the  purchaser  should 

1  Howland  v.  Leach,  11  Pick.  154.  *   West  v.  Emmons,  5  Johns.  179. 

-  Ibid.  154,  155.  ^  Campbell  v.  Gittiiigs,  19  Ohio, 347. 

3  Jones  V.  Barkloy,  Dougl.  684. 


en.    XXIX.]      ACTS    OF   PERFORMANCE. — TENDER,   ETC.  57 

immediately  pay  down  a  deposit,. in  part  of  the  purchase- 
money,  and  sign  an  agreement  for  payment  of  the  remain- 
der, within  twenty-eight  days,  when  possession  should  be 
given  of  the  part  in  hand ;  and  should  have  proper  con- 
veyances and  assignments  of  the  leases,  without  requiring 
the  lessor's  title,  on  payment  of  the  remainder  of  the  pur- 
chase money.  Assumpsit,  by  the  seller,  for  non-performance 
of  the  conditions.  Declaration,  in  the  first  count,  that  the 
plaintiffs  gave  possession,  according  to  the  conditions,  and 
were  also  ready  and  willing  to  give  proper  conveyances  and 
assignments  of  the  leases,  on  payment  of  the  remainder  of 
the  purchase-money ;  in  the  second  count,  that  the  plaintiffs 
contracted  with  the  defendant  to  sell,  and  the  defendant  to 
purchase  an  estate,  and  that,  on  the  plaintiffs'  having  prom- 
ised the  defendant  to  convey,  he  promised  to  accept  the 
conveyance,  and  pay  the  remainder  of  the  purchase-money 
in  a  reasonable  time ;  that,  although  the  plaintiffs  were  ready 
and  willing,  and  offered,  to  convey  and  assign  to  the  defend- 
ant, and  a  reasonable  time  had  elapsed  for  accepting  the 
conveyance,  the  defendant  would  not  accept  it,  or  pay  the 
remainder  of  the  purchase-money.  Motion  in  arrest  of  judg- 
ment, on  the  grounds  that  the  plaintiffs  had  not  set  out  their 
title,  or  tendered  the  conveyances.  Held,  the  plaintiffs  were 
not  bound  to  set  out  their  title,  and  the  allegation  of  their 
being  ready  and  willing  to  convey  was  equivalent  to  a  per- 
formance of  the  conditions  on  their  part ;  but,  at  all  events, 
such  objections  were  cured  by  a  verdict.^ 

17.  The  vendor  is,  of  course,  not  required  to  tender  a 
deed,  where  the  covenants  to  convey  and  to  pay  the  price 
are  not  mutual  or  conditional,  but  independent. 

18.  Agreement  under  seal  to  sell  and  purchase  certain 
premises.  The  purchaser  covenanted  to  pay,  on  or  before  a 
fixed  day,  as  the  consideration  of  such  sale  and  purchase,  a 
certain  sum,  with  interest  to  the  completion  of  the  purchase, 
the  vendor  allowing  thereout  the  same  rate  of  interest  for 

1  Ferry  v.  Williams,   1  Moore,  498. 


58  LAW  OF  VENDORS  AND  PURCHASERS.    [CH.  XXIX. 

SO  much  of  the  money  as  might  be  paid  in  the  meanwhile ; 
and  the  purchaser  agreed  to  pay  for  the  conveyance  and  the 
stamp.  Held,  the  conveyance  was  not  a  condition  prece- 
dent to,  or  concurrent  with,  the  payment,  and  the  seller 
might  therefore  sue  for  the  purchase-money  and  interest, 
without  previously  tendering  a  conveyance.^ 

19.  The  tender  of  a  deed  may  be  dispensed  with  by  the 
consent,  waiver,  or  discharge  of  the  vendee.  Assumpsit  by 
vendor  against  purchasers.  The  declaration  stated,  that, 
in  consideration  of  the  plaintiff's  selling  to  the  defendants 
certain  land,  to  be  paid  for  as  soon  as  the  conveyance 
should  be  completed,  the  defendants  promised  to  purchase 
and  pay  for  the  same  ;  that,  although  the  plaintiff  had 
allowed  the  defendants  to  enter  into  possession,  and  had 
always  been  ready  and  willing  to  make  a  good  title,  and 
offered  to  execute  a  conveyance,  and  would  have  tendered  a 
proper  conveyance,  but  that  the  defendants  discharged  him 
from  so  doing ;  yet  the  defendants  did  not  pay,  &c.  Plea, 
that  no  conveyance  had  ever  been  made  or  executed.  Held, 
on  general  demurrer,  that  the  plea  was  bad,  and  the  decla- 
ration good.^ 

20.  But  a  parol  waiver  has  been  held  insufficient.  Thus 
A.  covenants,  that  he  will  on  or  before  a  certain  day  convey 
to  B.,  by  such  conveyance  as  B.'s  counsel  should  advise,  all 
the  ground  before  conveyed  to  him  by  C,  in  consideration 
of  which,  B.  covenants  to  pay  a  certain  sum,  and  reserve 
certain  rents,  &c.,  to  A.  and  to  lay  out  a  certain  sum  on 
the  premises.  Held,  A.  cannot  maintain  covenant  against 
B.,  without  averring  either  a  conveyance,  or  a  readiness  to 
convey,  on  or  before  the  day,  and  that  B.  prevented  him  by 
some  act  or  neglect  of  his.  And  it  is  not  sufficient,  to  show 
that  after  the  day  B.  accepted  a  conveyance  of  ground-rents, 
in  lieu  of  part  of  the  land,  and  accepted  that  and  the  con- 
veyance of  the  other  part  in  lieu  of  the  conveyance   cov- 

1  Mattock  v.Jvinglake,  10  Ad.  &  Ell.  -  Laird  v.  Pim,  7  Mees.  i  Wels.  474. 
50. 


CH.   XXIX.]      ACTS    OF   PERFORMANCE. — TENDER,   ETC.  59 

enanted  to  be  made  by  A. ;  for  this  is  a  substitution  of  a 
different  agreement  by  parol,  to  which  the  covenant  does 
not  apply.^ 

21.  With  regard  to  the  form  of  an  allegation  by  the  ven- 
dor, that  he  has  fulfilled  his  obligation  to  convey ;  it  has 
been  held,  that,  in  an  action  on  a  bond  to  execute  and  de- 
liver a  deed  of  land,  a  plea  of  general  performance,  not 
stating  specially  the  manner  of  performance,  is  bad.^  Wilde, 
J.,  says  :  "  In  general,  a  plea  of  performance  of  a  condition 
must  show  specially  the  manner  of  the  performance.  The 
exception  is,  where  the  matter  is  of  so  intricate  and  com- 
plicated a  nature,  or  embraces  such  a  variety  of  minute 
circumstances,  that  a  particular  statement  would  cause  great 
prolixity.-^ 

22.  But,  in  assumpsit  for  the  purchase-money  of  an  estate, 
where  the  condition  of  sale  was  to  pay  on  or  before  the  14th 
of  June,  on  having  a  good  title  ;  the  plaintiff  averred,  that 
he  was  seized  in  fee,  and  made  a  good  and  satisfactory  title 
to  the  defendant,  before  the  24th  of  June.  Held  sufficient, 
without  further  particularizing  the  title.* 

23.  By  an  agreement  between  the  plaintiffs  and  defend- 
ants, reciting  that  the  plaintiffs  had  advertised  for  sale  by 
auction  certain  collieries  and  other  property,  under  a  power 
contained  in  certain  mortgages,  in  which  property  two  of 
the  defendants  were  or  claimed  to  be  incumbrancers,  and 
that  the  plaintiff  had,  upon  the  request  of  the  defendants, 
and  for  certain  alleged  considerations,  agreed  to  postpone 
the  sale ;  it  was  stipulated  that  the  amount  found  due  to 
the  plaintiffs,  on  taking  an  account  as  therein  mentioned, 
should  be  secured  by  the  covenant  of  the  defendants,  by 
three  instalments,  payable,  &c. ;  that  the  possession  of  the 
collieries,  debts,  and  stock  should  be  given  up  to  the  defend- 
ants ;  that,  on  payment  of  the  first  instalment,  the  whole  of 
the  property  mortgaged  to  the  plaintiffs  (except  the  collieries) 


i  Heard  v.  Wadham,  1  E,619.  ^  Ibid.  553. 

-  Tinney  v.  Ashley,  15  Pick.  546.  ^  Martin  v.  Smith,  2  Smith,  543. 


00  LAW    OF    VENDORS    AND    I'l'llCIIASERS.  [CII.  XXIX. 

should  be  released  and  conveyed  to  the  defendants ;  and  that 
the  covenant  should  be  forthwith  prepared  and  executed  by 
ail  parties  within  twenty-one  days.  In  assumpsit  at^ainst 
the  defendants  for  not  executing  the  covenant,  the  declara- 
tion alleged,  that  the  plaintiffs  were  interested  in  the  prop- 
erty as  mortgagees,  under  and  by  virtue  of  certain  mortgages, 
and  were  in  possession  of  said  collieries,  and  certain  coal, 
&c.,  the  produce  of  the  collieries,  in  which  property  two  of 
the  defendants  were  or  claimed  to  be  interested  as  incum- 
brancers, and  that  the  plaintiffs  had  advertised  for  sale,  and 
were  about  to  sell  their  interest  in  said  property,  under  a 
power  lawfully  authorizing  them  in  that  behalf,  and  con- 
tained in  the  said  mortgages,  of  all  which  the  defendants 
had  notice ;  and,  after  setting  out  the  agreement,  assigned 
for  breach  the  non-execution  by  the  defendants  of  the  cov- 
enant. Held,  on  special  demurrer,  that  the  production  of  a 
title  to  convey  was  not  a  condition  precedent  to  the  plain- 
tiff's right  to  sue,  the  parties  not  staliding  in  the  relation  of 
vendors  and  purchasers  ;  also,  that  there  was  no  repugnancy 
or  inconsistency  in  the  allegation  that  the  plaintiHs  were 
about  to  sell  their  interest  under  a  power,  the  term  "  power  " 
being  used  in  its  popular  and  not  in  its  artificial  sense ;  also, 
that  the  allegation  of  interest  in  the  plaintiffs  was  sufficiently 
certain.^  (a) 

'  Hallcwell  v.  Morrell,  1   Scott,  309. 


(rt)  The  general  rule  of  the  English  law,  requiring  preparation  and  ten- 
der of  the  deed  by  the  vendee,  is  not  applicable,  where  the  contract  ex- 
pi-essly  imposes  the  duty  upon  the  vendor.  Thus  a  contract  provided,  that 
a  lease  should  be  drawn,  prepared,  and  executed  at  the  sole  expense  of  the 
lessor.  In  an  action  on  the  agreement  by  the  lessee ;  held,  it  was  not 
necessary  to  aver  that  a  lease  was  tendered  to  the  lessor  for  execution. 
Price  V.  Williams,  1  Mees.  &  Wels.  6. 

Upon  an  award  to  perform  a  purchase  and  pay  the  price  upon  convey- 
ance by  the  plaintiff  to  the  defendant,  the  defendant  is  not  in  contempt 
before  tender  of  a  conveyance  executed,  demand  of  the  money,  and  refusal 
to  accept  and  pay.     Standley  v.  Hemmington,  6  Taunt.  561. 


CH.  XXX.]  •  CLAIM    OF    THE    VENDEE,    ETC.  61 


CHAPTER    XXX. 

CLAIM  OF  THE  VENDEE,  IN  CASE  OF  DEFECTIVE  TITLE,  OR  OTHER 
BREACH  OF  CONTRACT. FORM  OF  ACTION. TENDER  OF  PUR- 
CHASE   MONEY    AND    DEMAND    OF    DEED,    ETC. 

1.  While,  as  has  been  seen,  the  vendor  must  in  general 
prove  a  valid  title  to  the  land  sold,  in  order  to  recover  the 
purchase-money ;  the  vendee,  on  the  other  hand,  has  his 
remedy  against  the  vendor,  to  recover  back  money  already 
paid  upon  the  faith  of  such  title,  upon  the  ground  that  it 
has  proved  to  be  defective.  The  rule  often  found  stated  in 
the  books,  that  the  action  of  assumpsit  does  not  lie  for  the 
purpose  of  trying  a  question  of  title  to  real  property ;  has 
never  been  held  to  preclude  this  form  of  action  in  the  case 
mentioned,  although  founded  immediately  and  solely  upon 
an  alleged  want  of  title,  and  although  the  defence,  if  any, 
must  ordinarily  be  such  as  to  turn  wholly  upon  this  question. 
The  correct  view  would  seem  to  be,  that  the  plaintiff  does 
not  claim  a  title  to  the  land  in  question,  but  seeks  to 
recover  upon  the  very  ground  that  no  title  can  be  made ; 
while,  although  the  defendant  may  set  up  his  title  as  a  de- 
fence, and  thereby  bring  it  in  issue,  he  may  also  make  vari- 
ous other  defences;  and  moreover  a  judgment  in  his  favor 
will  not  settle  the  title,  as  between  him  and  any  adverse 
claimant,  not  a  party  to  the  suit,  (a) 

(a)  It  is  said  in  a  work  of  high  authority,  (1  Chit.  PI.  342,)  that  "  Courts 
will  not  allow  a  colorable  title  to  land,  &c.,  to  be  tried  in  this  form  of  action, 
but  the  plaintiff  must  declare  in  tort."  This  remark,  however,  is  applied 
more  particularly  to  the  waiver  of  lorts,  which  is  often  allowed  with  reference 

VOL.  II.  •  6 


62  LAW  OF  VENDORS  AND  PURCHASERS.     [CH.  XXX. 

2.  Hence  it  has  been  held,  that  an  action  for  money  had 
and  received  may  be  maintained,  to  recover  money  received 
by  the  defendant  as  a  deposit  on  the  purchase  of  an  estate 
by  the  plaintiff,  to  which  the  defendant  cannot  make  the 
stipulated  title.^ 

3.  The  plaintiff  had  from  time  to  time  paid  rent  to  the 
defendants  for  certain  premises  which  he  held  of  them,  but 
to  which  it  afterwards  turned  out  they  had  no  title.  The 
plaintiff,  having  been  ejected,  and  compelled  to  pay  the 
mesne  profits  for  the  time  during  which  he  held  of  the  de- 
fendants, brings  assumpsit  to  recover  the  amount  of  the 
rent  paid  to  them.  It  was  objected,  that  title  to  land  could 
not  be  tried  in  an  action  for  money  had  and  received ;  but 
the  objection  was  overruled.  Lord  Tenterden  says,  "  here 
was  no  trial  of  title.  It  had  been  previously  ascertained, 
that  the  defendants  had  no  title  whatever  to  this  land  in 
respect  of  which  the  plaintiff  had  paid  rent  to  them ;  and 
the  defendants  did  not  at  the  trial  of  this  cause  claim  to 
have  any  title."  ^ 

4.  A  defendant,  supposing  himself  the  legal  representative 
of  tenant  for  years,  sold  the  term  and  delivered  the  lease  to 

1  Alpass  V.  Watkins,  8  T.  R.  516;         ^  Newsome  v.  Graham,   10  B.  &  C. 
Elliot   V.   Edwards,   3    B.    &   P.    181  ;     234. 
Eames  v.  Savage,  14  Mass.  42.5. 

9 

to  personal  property,  but  not,  as  this  writer  here  takes  occasion  to  say,  in 
case  of  injuries  to  real  estate,  which  involve  the  title.  So,  in  an  action  for 
money  had  and  received,  it  appeared  that  the  holder  of  a  note,  indorsed  to 
him  as  security  for  a  debt,  having  recovered  judgment  against  the  maker 
aud  levied  on  the  rents  and  profits  of  his  laud  for  a  term  of  years,  signed 
an  unsealed  writing,  promising  to  pay  the  plaintiff  all  the  rents  which  he 
should  receive  after  payment  of  his  debt,  or  else  allow  the  plaintiff  the  use 
and  improvement  of  the  land.  The  debt  having  been  paid  in  his  lifetime, 
it  was  held,  that  rents  received  by  his  heir  imder  color  of  descent  might  be 
recovered  by  the  plaintiff  in  an  action  for  money  had  and  received ;  the 
plaintiff  not  claiming  any  title  to  the  estate  in  question,  nor  contesting  any 
title  set  up  by  the  defendant.  Arms  v.  Ashley,  4  Pick.  70.  So  the  rule  in 
question  does  not  apply  to  cases  where  only  the  past  rents  of  land  are  in 
question.     Moneypenny  v.  Bristow,  2  Russ.  &  My.  117. 


OH.  XXX.]  CLAIM    OF   THE   VENDEE,   ETC.  63 

the  plaintiff,  but  without  any  assignment  or  formal  convey- 
ance, saying,  the  premises  were  his,  and,  if  any  thing  hap- 
pened, he  would  see  the  plaintiff  righted.  Held,  the  plain- 
tiff might  maintain  an  action  for  money  had  and  received 
against  him,  the  rightful  administrator  of  the  tenant  for 
years  having  ousted  the  plaintiff  by  ejectment.  Lord  Ken- 
yon  said,  "  I  do  not  wish  to  disturb  the  rule  of  caveat  emptor 
adopted  in  Bree  v.  Holbeck,  and  in  other  cases  where  a  reg- 
ular conveyance  was  made,  to  which  other  covenants  were 
not  to  be  added ;  for  in  general  the  seller  only  covenants 
for  his  own  acts  and  for  those  of  his  ancestor,  in  which  re- 
spect the  case  of  a  mortgage  differs  from  it,  as  a  mortgagor 
covenants  that  at  all  events  he  has  a  good  title  ;  but  here 
the  whole  passed  by  parol,  and  it  proceeded  on  a  misappre- 
hension by  both  parties,  that  the  defendant  was  the  legal 
representative  of  the  lessee,  though  it  turned  out  afterwards 
that  he  was  not.  As,  therefore,  the  money  was  paid  under 
a  mistake,  I  think  that  an  action  for  money  had  and  received 
will  lie  to  recover  it  back."  ' 

5.  The  plaintiff  purchased  of  the  defendant  a  term  for 
years,  paying  him  $1,800  therefor.  At  the  time  of  the  pur- 
chase, both  parties  honestly  but  erroneously  supposed  that 
the  defendant  was  the  owner  of  the  term.  Held,  the  plain- 
tiff was  entitled  to  recover  back  the  money .^  So,  where 
the  defendant  agreed  to  sell  an  estate  to  the  plaintiff  upon 
the  deposit  of  a  sum  of  money,  but  was  afterwards  dis- 
abled from  performing  the  agreement;  held,  the  plaintiff 
might  recover  the  deposit,  though  the  agreement  for  sale 
was  by  deed.^ 

6.  A.  devised  to  B.,  C,  D.,  and  E.,  two  parcels  of  land,  in 
trust  to  sell,  and  -divide  the  money  among  his  brother's  and 
sister's  children.  The  devisees,  E.  being  one  of  twenty-four 
persons  entitled  under  the  will  to  a  share  of  the  money,  were 
proceeding  to  sell,  when   it  was  agreed  by  the  three  first 

1  Cripps  V.  Reade,  6  T.  R.  606.  '■^  Greville  v.  Da  Costa,  Pcake,  Ad. 

2  Martin  v.  McCormick,  4  Seld.  331.        Cas.  113. 


04  LAW  OF  VENDORS  AND  PURCHASERS.     [CH.  XXX. 

trustees  and  the  twenty-three  other  persons  entitled  to  the 
money,  that  E.  should  become  the  purchaser  of  the  two 
parcels,  paying  X300  for  one  and  X700  for  the  other.  A 
conveyance  was  accordingly  })reparcd  and  executed  by  B. 
and  C.  only,  upon  which  E.  took  possession  and  paid  the 
purchase-money,  which  was  divided  among  the  several  per- 
sons entitled  under  the  will.  E.,  being  afterwards  evicted 
from  the  smaller  parcel,  in  consequence  of  a  defect  in  the 
title  derived  under  the  will,  brought  an  action  for  money 
had  and  received  against  one  of  the  twenty-three  persons, 
to  recover  the  share  of  the  <£300  received  by  him,  at  the 
same  time  refusing  to  give  up  the  parcel  of  land  for  which 
<£700  had  been  paid.     Held,  that  he  was  entitled  to  recover.' 

7.  A  father  made  a  conditional  arrangement,  by  parol, 
with  the  defendant,  on  behalf  of  his  son,  the  plaintiff,  for 
the  purchase  of  certain  lands,  which  was  to  be  ratified  or 
annulled  by  the  plaintiff,  at  his  discretion,  on  attaining 
majority.  Accordingly,  the  father  advanced  to  the  defend- 
ant large  sums  of  money,  on  account  of  the  plaintiff,  and  it 
was  agreed  that  the  defendant  was  to  pay  back  the  money, 
with  interest,  to  the  plaintiff,  in  case  he  should  decline  the 
arrangement.  The  plaintiff,  shortly  after  attaining  age,  de- 
clined, and  gave  notice  thereof  to  the  defendant.  Held,  the 
money  belonged  to  the  son,  and  could  be  recovered  in  an 
action  for  money  had  and  received.^ 

8.  It  has  been  held,  that,  if  a  purchaser  has  paid  any  part 
of  the  purchase-money,  and  the  seller  refuses  to  complete 
his  part  of  the  contract,  the  purchaser  may  elect  either  to 
affirm  the  contract  by  bringing  an  action  for  its  non-perform- 
ance, or  to  disaffirm  it  ab  initio^  and  bring  an  action  for 
money  had  and  received.  Thus,  if  there  be  a  defect  in  the 
title,  which  the  vendor,  with  knowledge  of  its  existence, 
fraudulently  suppresses,  and  receives  from  him  a  part  of  the 
purchase-money,  the  purchaser  may  recover  back  such  money 
in  an  action  for  money  had  and  received.^ 

'  Johnson  v.  Johnson,  3  Bos.  &  Pull.        -  Johnson  v.  Evans,  8  Gill,  155. 
162.  3  Lyon  y_  Annable,  4  Conn.  350. 


CH.  XXX.]        CLAIM  OP  THE  VENDEE,  ETC.  65 

9.  But,  on  the  other  hand,  the  right  to  recover  back  money 
paid  by  the  vendee  of  real  estate,  as  such,  has  been  sub- 
jected to  nice  limitations.  Thus  it  is  said,  the  cases  in 
which  a  vendee  may  recover  back  money  paid  on  a  contract 
for  the  purchase  of  real  estate,  are,  1st,  where  the  rescission 
is  voluntary  and  by  mutual  consent ;  2d,  where  the  vendor 
cannot  or  will  not  perform  his  part  of  the  contract ;  3d, 
where  he  has  been  guilty  of  fraud  in  making  the  contract.^ 
Otherwise  where  the  vendor  is  in  no  default,  and  the  rescis- 
sion arises  from  an  unexpected  default  of  the  vendee.^ 

10.  Where  a  valid  contract  was  made  to  pay  for  and 
receive  a  conveyance  of  land,  and  the  money  was  paid,  but 
no  deed  executed ;  held,  the  vendee  could  not  rescind  the 
contract  and  recover  back  the  money,  but  should  sue  on  the 
agreement  as  one  still  subsisting.^ 

11.  The  defendant  agreed,  in  consideration  of  <£10,  to  let 
a  house  to  the  plaintiff,  which  the  latter  was  to  repair,  and 
execute  a  lease  of  it  within  ten  days ;  but  the  plaintiff  was 
to  have  immediate  possession,  and  in  consideration  of  the 
premises  to  execute  a  counterpart  and  pay  the  rent.  The 
plaintiff  took  possession  and  paid  the  .£10  immediately,  but 
the  defendant  neglected  to  execute  the  lease  and  make  the 
repairs  beyond  the  period  provided,  notwithstanding  which 
the  plaintiff  still  continued  in  possession.  Held,  the  plaintiff 
could  not  by  quitting  the  house  rescind  the  contract,  and 
recover  back  the  <£10  in  an  action  for  money  had  and  re- 
ceived ;  but  could  only  declare  for  breach  of  the  special 
contract ;  for  a  contract  cannot  be  rescinded  by  one  party  for 
the  default  of  the  other,  unless  both  can  be  put  in  statu 
quo^ 

12.  Money  paid  upon  a  parol  contract  for  the  purchase  of 
land,  which  is  void  under  the  Statute  of  Frauds,  cannot  be 
recovered  back,  while  the  vendor  is  ready  and  willing,  on  his 
part,  to  perform  the  contract ;  ^  but  only  on  the  unwillingness 

1  Battle  V.  Rochester,  &c.  5   Barb.        '^  Fuller  v.  Hubbard,  6  Cow.  13, 
414.  "  Hunt  V.  Silk,  5  East,  449. 

2  Ibid.    Green  v.  Green,  9  Cow.  46.  ^  Collier  v.  Coates,  17  Barb.  471. 

6*  ' 


66  LAW    OF   VENDORS    AND    PURCnASERS.  [cil.  XXX 

or  inability  of  the  vendor  to  convey,  or  a  mutual  abandon- 
ment of  the  contract.^  Thus  the  plaintiff,  by  parol,  agreed 
to  buy  of  the  defendant  a  tract  of  land  for  $650,  one  half 
of  which  was  to  be  paid  on  a  certain  day,  when  the  contract 
was  to  be  consummated  and  possession  delivered.  The 
plaintiff,  at  the  time  of  the  contract,  paid  $50  in  part  per- 
formance, but  on  the  day  fixed  was  unable  to  pay  the 
balance,  and  refused  to  complete  the  contract,  though  the 
defendant  was  willing  to  do  it.  Held,  the  plaintiff  could 
not  recover  the  $50,  there  being  no  evidence  that  the  de- 
fendant had  assented  to  a  rescission  of  the  contract.^ 

13.  The  defendants,  assignees  of  a  bankrupt,  proposed  to 
sell  to  the  plaintiff  a  piece  of  land,  with  all  faults  and  de- 
fects. Before  any  conveyance  was  executed,  the  plaintiff 
asked  the  defendants  whether  any  rent  had  ever  been  paid 
for  the  land.  They  replied  that  none  had  been  paid  by  the 
bankrupt,  or  by  any  person  under  whom  he  claimed.  In 
fact,  rent  had  been  paid  by  the  person  who  had  sold  to  the 
bankrupt,  and  he  recovered  possession  of  the  lands.  Held, 
in  an  action  to  recover  the  purchase-money,  it  was  properly 
left  to  the  jury  to  say,  whether  the  assignees  bond  fide  be- 
lieved their  own  representation  ;  and,  the  jury  having  found 
that  they  did,  that  the  plaintiff  was  not  entitled  to  recover.^ 

14.  A  county  being  about  to  erect  a  court-house,  the 
plaintiff,  being  interested  in  having  it  located  in  a  particular 
place,  signed  a  subscription  paper,  promising  to  pay  the  sum 
affixed  to  his  name,  "  for  land  sufficient  to  set  the  court- 
house upon  "  at  that  spot,  provided  it  was  located  there. 
Defendant,  the  owner  of  the  land,  thereupon  executed  a 
deed  to  the  county,  reserving  a  reversionary  interest  in  case 
the  county  should  at  any  time  cease  to  occupy  it  as  a  court- 
house. The  plaintiff  paid  the  amount  of  his  subscription. 
The  court-house  was  erected,  but  was  burned  two  years 
afterwards,  and  the  county  then  determined,  that  they  would 


i  Sims  V.  Hutchins,  8  S.  &  M.  328.  »  Early  v.  Garrett,  9  Barn.  &  Cress. 

-  Ibid.  928  ;  4  Mann.  &  Ryl.  687. 


OH.  XXX.]  CLAIM    OF   THE    VENDEE,   ETC.  67 

not  rebuild  on  that  place,  unless  they  could  have  the  remain- 
der of  the  lot,  free  of  expense  to  the  county,  and  it  was 
accordingly  purchased  of  the  defendant  at  a  price  equal  to 
the  whole  value  of  the  lot  previous  to  the  first  purchase. 
Held,  these  facts  did  not  entitle  the  plaintiff  to  sustain 
assumpsit  for  money  had  and  received  against  the  defendant 
for  the  amount  of  his  subscription.^ 

15.  Where  the  plaintiff  contracted  to  purchase  land,  which 
the  vendor  afterwards  conveyed  to  trustees  for  the  benefit  of 
his  creditors,  and  which  was  offered  by  them  for  sale,  and 
the  plaintiff  at  the  sale  agreed  with  the  vendor  and  his  cred- 
itors, that  the  land  should  be  sold  and  the  money  held  sub- 
ject to  the  claim  of  the  rightful  owner ;  held,  assumpsit  for 
money  had  and  received  would  not  lie  by  the  plaintiff 
against  the  trustees.^ 

16.  Where  the  obligor  in  a  bond,  conditioned  to  convey 
an  undivided  moiety  of  a  mill  on  payment  of  certain  sums, 
had  disabled  himself  from  performing,  by  mortgaging  one 
undivided  half  of  the  mill  to  a  third  person ;  held,  although 
the  obligee  might  thereby  be  excused  from  tendering  perform- 
ance on  his  part,  he  could  not  maintain  assumpsit  to  recover 
the  money  paid,  on  the  ground  that  the  obligor  by  his  acts 
had  rescinded  the  contract,  the  facts  not  showing  clear  and 
unequivocal  proof  of  such  rescinding  when  the  action  was 
brought.^ 

17.  We  have  already,  in  connection  with  the  duty  of  the 
vendor  to  convey  a  good  title,  considered  the  question,  as 
to  the  particular  acts  required  by  law  of  the  respective 
parties,  in  reference  to  the  execution  and  tender  of  the  deed, 
by  which  a  contract  of  sale  and  purchase  is  consummated. 
It  has  been  seen,  that  the  rule  of  the  English  law  has  been 
for  the  most  part  reversed  in  this  country,  by  requmng  the 
vendor,  instead  of  the  vendee,  to  tender  the  deed.  In  the 
same  connection,  we  have  had  occasion  to  refer  to  the  duty 


'  Barnes  v.  Baylies,  18  Verm.  430.  ■'  Goddard  v.  Mitchell,  17  Maine,  366 . 

2  Gaither  v.  Hetrick,  10  Ired.  114. 


()8  LAW   OF    VRNDOllS    AND   PURCHASERS.  [CH.  XXX. 

of  the  vendee,  as  to  demanding  a  deed.^  To  what  has  been 
already  said  we  need  only  now  add,  that,  in  general,  the 
vendee  cannot  maintain  an  action  for  money  paid  by  him 
as  a  deposit  on  the  purchase  of  an  estate,  to  which  the 
defendant  fails  to  make  a  title ;  without  showing  that  he 
has  tendered  the  purchase-money  and  demanded  a  title.^ 
While  on  the  other  hand  it  has  been  held,  that,  if  the  obligor 
of  a  title-bond  had  no  title  at  the  time  the  deed  was  to  be 
executed,  the  obligee  may  sue  on  the  bond  without  having 
demanded  the  deed.^  (a) 

18.  As  to  the  time  within  which  the  vendee  may  maintain 
an  action  against  the  vendor,  it  has  been  held,  that,  in  case 
of  a  bond  for  a  deed,  to  be  delivered  in  reasonable  time  after 
payment  of  a  certain  sum  by  the  obligee  ;  ninety  days  is 
not  a  reasonable  time,  though  before  action  brought  on  the 
bond.4 

19.  The  defendants  gave  the  plaintiff  a  bond,  reciting,  that 
for  a  valuable  consideration  they  had  contracted  to  sell  him 
750  acres  of  land,  to  be  selected  from  their  lots,  in  case  he 
should,  at  his  own  expense,  select  and  survey  that  quantity; 
and  that  it  was  expected  that  he  should  complete  his  selec- 

'  See  Vol.  1,  p.  37.  3  Blann    v.    Smith,   4  Blackf.   517  ; 

-  Hudson  V.  Swift,  20  Johns.  24.  Tarwater  v.  Davis,  2  Eng.  1.53. 

*  Aiken  v.  Sandford,  5  Mass.  494. 

(o)  It  is  unnecessary  to  refer  anew  to  the  peculiar  doctrine  of  some  of 
the  eases  in  New  York,  that  a  vendee  is  required  to  make  a  double  demand 
for  a  deed.     (See  Vol.  1,  p.  37.) 

With  regard  to  the  American  rule  as  to  the  tender  of  a  deed,  we  may 
here  add  the  remark  made  by  the  Supreme  Court  of  the  United  States 
that  the  rule  requiring  the  purchaser  of  property  to  prepare  and  tender  a 
deed  of  conveyance  of  the  property  to  the  vendor,  to  be  executed  by  him, 
although  prevailing  in  England,  does  not  seem  to  have  been  adopted  in 
some  of  the  States  of  the  United  States.  In  Ohio,  the  rule  does  not  prevail. 
The  local  practice  ought  certainly  to  prevail,  and  to  constitute  the  proper 
guide  in  the  interpretation  of  the  terms  of  a  contract.  Taylor  v.  Long- 
worth,  14  Pet.  172  ;  1  McLean,  395. 

In  Maine,  the  vendor  must  prepare  the  deed.  Hill  v.  Hobart,  16  Maine, 
164. 


CII.  XXX.]  CLAIM    OF    THE    VENDEE,    ETC.  69 

tion  within  two  years  from  the  date  of  the  bond ;  and  con- 
ditioned, that  the  defendants,  on  being  duly  notified  of  the 
selection,  with  the  numbers  of  the  lots,  &c.,  and  on  the 
giving  up  to  them  of  the  bond,  should  execute  and  deliver 
to  the  plaintiff  a  good  and  sufficient  warranty  deed  thereof. 
Held,  the  bond  did  not  require  absolutely  that  the  selection 
should  be  made  and  notice  of  it  given,  within  the  two 
years,  but  only  within  a  reasonable  time.^  (a) 

'  Tinney  v.  Ashley,  15  Pick.  546. 


(a)  The  following  miscellaneous  cases  illustrate  the  subject  of  this  chapter 
with  more  especial  reference  to  the  recovery  of  a  deposit,  upon  the  vendor's 
failure  to  comply  with  his  contract : — 

Where  a  good  title  was  not  made  out,  it  was  held,  that  the  purchaser  was 
entitled  to  recover  his  deposit  from  the  auctioneer,  without  notice  of  the 
contract  having  been  rescinded.    McComb  r.  Wright,  4  Johns.  Ch.  659. 

The  plaintiff  purchased  an  estate  sold  by  the  defendant  at  auction,  and 
signed  a  memorandum  of  agreement,  in  which  he  was  described  as  the 
agent  of  A.  B. ;  who,  however,  afterwards  repudiated  the  contract.  After 
notice  of  this  fact  to  the  agent  of  the  vendor,  the  plaintiff  pays  the  deposit- 
money,  according  to  the  conditions  of  sale.  The  title  proving  defective, 
held,  he  was  entitled  to  recover  the  deposit  in  his  own  name.  Langstroth 
V.  Toulmin,  3  Stark.  145. 

In  an  action  to  recover  a  deposit  on  the  ground  of  a  defect  in  the  vendor's 
title,  specified  on  rescinding  the  contract ;  no  other  objection  can  be  insisted 
on  at  the  trial,  if  it  be  of  such  a  nature,  that  it  might,  if  then  stated,  have 
been  removed.     Todd  v.  Hoggart,  1  Mood.  &  Malk.  128. 

In  an  action  for  money  had  and  received  by  a  purchaser  against  the  ven- 
dor to  recover  back  the  deposit,  the  conditions  of  sale  not  being  complied 
with,  the  defendant,  by  Judge's  order,  may  obtain  a  particular  of  the  grounds 
on  which  the  plaintiff  relies,  to  which  the  latter  will  be  confined  at  the  trial. 
But,  if  there  has  been  no  particular,  the  plaintiff  may  recover,  by  proving 
a  breach  of  the  conditions  never  before  mentioned  to  the  defendant.  Squire 
V.  Tod,  1  Camp.  Cas.  293. 

With  regard  to  the  form  of  action,  by  which  the  vendee  may  recover 
back  the  purchase-money  paid,  it  is  held,  that,  to  warrant  an  action  for 
money  had  and  received,  to  recover  money  paid  under  a  special  contract  to 
convey  land,  as  strict  a  performance  must  he  shown  by  the  plaintiff,  as  if  he 
had  sued  on  the  contract ;  unless  it  has  been  either  expressly  rescinded  or 
impliedly  so,  as  by  nothing  having  been  done  under  it  for  a  long  time,  or  by 


70  LAW   OF   VENDORS   AND    I'UKCHASERS.  [Cll.  XXX. 

ilu"  defendant  having  acted  inconsistently  witli  it.  Tims,  wliere  a  party 
covenanted  to  pay  money  for  land  by  instalments,  on  completing  which  he 
was  to  have  a  deed,  and  he  took  possession,  and  continued  it  for  some  time, 
making  partial  payments,  but  finally  failed  to  pay,  and  the  vendor  took 
possession ;  in  an  action  for  money  had  and  received,  to  recover  back  the 
money  paid,  held  it  would  not  He.  And,  the  covenant  to  pay  being  inde- 
pendent, held  no  breach,  that  the  defendant  had  never  an\  title  to  the 
land  ;  for  non  constat,  had  the  plaintiif  paid,  that  the  defendant  might  not 
have  procured  a  title  and  conveyed.     Green  v.  Green,  9  Cow.  46 


CH.  XXXI.]  NOTES,   ETC.,    FOR   PURCHASE-MONEY.  71 


CHAPTER  XXXI. 

NOTES  AND  OTHER  SECURITIES,  GIVEN  FOR  THE  PURCHASE-MONEY 
OF  LAND  ;  ACTIONS  THEREUPON  AND  DEFENCES  TO  SUCH  AC- 
TIONS ;  TENDER  OF  DEED  ;  TOTAL  OR  PARTIAL  FAILURE  OF 
TITLE  ;    COVENANTS    OF   WARRANTY. 

1.  Having  considered  the  right  of  a  vendee  to  recover 
purchase-money  already  paid,  where  the  vendor  fails  to  make 
a  good  title  to  the  property  sold ;  we  now  proceed  to  treat 
the  same  subject  in  another  aspect,  viz  :  the  liability  of  the 
purchaser  upon  a  note  or  other  security  given  by  him  for 
the  price  of  the  land.  Upon  the  various  questions  connected 
with  this  topic,  the  authorities  are  by  no  means  uniform,  as 
will  be  seen  by  a  citation  of  the  more  prominent  and  later 
cases  ;  but  the  general  result  seems  to  be,  that,  whenever  the 
money,  if  actually  paid,  might  be  recovered  back,  there,  a 
fortiori,  the  party  who  would  otherwise  be  plaintiff,  standing 
in  the  more  favorable  position  of  defendant,  and  therefore 
having  the  burden  of  proof  less  stringent  upon  him,  may 
make  a  valid  defence  to  an  action  upon  any  security  given 
for  the  price. 

2.  Upon  this  ground,  the  law  generally  requires  a  tender 
of  a  conveyance,  in  order  to  maintain  a  suit  upon  the  secu- 
rity given  for  the  price,  (a)  Thus,  if  a  note  be  given  for  the 
price  of  land,  under  a  contract  that,  if  the  note  were  paid  at 
maturity,  the  payee  would  convey  the  land  to  the  maker ;  a 


(a)  It  has  been  held,  that,  in  declaring  upon  a  note  given  for  the  pur- 
chase money  of  land  agreed  to  be  conveyed,  it  is  necessary  to  set  forth  the 
consideration  of  the  note  and  to  aver  performance  of  the  agreement.  Perry 
V.  Rice,  10  Texas,  36  7. 


72  LAW  OF  VENDORS  AND  PURCHASERS.    [CH.  XXXI. 

tender  of  a  sufficient  deed  is  necessary,  on  the  day  of  ma- 
turity of  the  note,  to  render  the  maker  liable  on  the  note  to 
the  payee,  and  a  subsequent  tender  is  insufficient.^  So, 
where  a  vendor  gave  the  vendee  a  bond  for  a  deed  on  pay- 
ment of  notes,  on  time,  given  for  the  price ;  held,  an  action 
did  not  lie  on  the  notes,  v^ithout  making  or  offering  to  make 
a  deed  of  the  land,  or  showing  a  sufficient  reason  for  not 
doing  so.2  So,  in  an  action  on  a  sealed  note ;  and  a  plea 
that  tiie  consideration  was,  that  a  certain  lot  of  land  should 
be  conveyed  to  the  maker  on  the  payment  of  four  notes,  of 
which  all  but  the  one  in  suit  had  been  paid  ;  held,  the  plea 
was  sufficient,  as  the  plaintiff  had  not  offered  to  convey  on 
payment.^  So,  if  several  notes,  payable  at  different  times, 
be  given  for  the  price  of  land,  under  a  contract  for  a  convey- 
ance upon  payment  in  full;  a  suit  on  the  notes,  after  they 
have  all  become  due,  will  not  lie,  without  a  conditional  ten- 
der of  a  deed.'^ 

3.  Several  notes,  payable  at  different  times,  were  given 
for  the  purchase-money  of  land.  To  an  action  on  all  the 
notes  after  they  had  become  payable,  the  defendants  pleaded 
a  contract  by  them  to  pay  the  notes  as  they  should  become 
due,  and  in  that  case  the  plaintiffs  should  convey  the  land, 
&c.,  and  averred  in  the  plea,  that  the  plaintiffs  had  not  made 
or  tendered  a  deed  on  the  day  said  last  notes  became  due, 
"  according  to  the  tenor  and  effect  of  their  agreement." 
Held,  on  general  demurrer,  that  the  plea  was  good  ;  that,  the 
suit  not  being  brought  on  the  notes  first  becoming  due,  until 
all  the  notes  had  become  payable,  they  became  subject  to 
the  same  condition,  that  a  conveyance  should  be  tendered, 
as  those  last  becoming  due.^ 

4.  Assumpsit  on  a  note  by  the  assignee  against  the  maker. 
Plea,  that  the  note  was  given  in  consideration  of  a  lot  of 
land ;  and  setting  out  a  contract,  that,  on  the  day  the  note 
fell  due,  the  payee  should  be  the   owner  of   the   lot,   and 

1  M'CuUock  V.  Dawson,  1  Cart.  413.  ■*  Hook  v.  Nebeker,  1  Cart.  257. 

2  Stingle  V.  Hawkins,  8  Blackf.  435.  ^  McCuUouglj   v.  Dawson,  1   Smith, 
■^  Mix  V.  Ellsworth,  5  Ind.  51 7.                  245. 


CH.  XXXI.l  NOTES,    ETC.,    FOR   PURCHASE-MONET.  73 

the  deed  be  offered  to  the  defendant,  on  payment  of  the 
note,  unless  there  was  good  cause  for  not  making  the  offer. 
The  plea  further  averred,  that  the  deed  was  not  made  be- 
fore commencement  of  suit,  and  denied  the  payee's  owner- 
ship of  the  lot.  Replication,  that  the  deed  was  tendered, 
and  payment  of  the  note  demanded  and  refused,  before  the 
suit  was  commenced,  concluding  to  the  country.  Judgment 
for  the  plaintiff.  Held,  the  finding  of  the  Court,  so  far  as 
this  plea  was  concerned,  was  a  nullity,  the  plea  not  having 
led  to  any  issue  of  fact  ;  also,  that  the  defendant  could 
assign  as  error,  that  this  cause,  in  which  there  were  several 
pleas,  had  been  tried  without  an  issue  to  the  plea  referred  to, 
as  that  plea  was  a  valid  defence  to  the  action.^ 

5.  In  an  action  of  assumpsit  on  a  note,  a  plea,  that  the 
note  was  given  for  the  price  of  land,  under  a  contract  that  a 
conveyance  should  be  given  on  payment  of  the  note  at 
maturity,  and  that  no  deed  had  been  given  or  tendered  on 
the  day  of  maturity,  "  according  to  the  tenor  and  effect  of 
the  agreement ;  "  is  a  sufficient  allegation  that  the  deed  had 
not  been  tendered  on  payment  of  the  note,  on  that  day .2 

6.  The  plaintiff  gave  a  bond  to  convey  to  the  defendant  a 
parcel  of  land,  which  the  defendant  had  agreed  to  purchase, 
and  the  defendant  gave  a  promissory  note  on  demand,  not 
negotiable,  for  the  amount  of  the  agreed  consideration,  but 
taking  from  the  plaintiff  a  receipt,  stating  that,  if  the  bar- 
gain should  be  rescinded,  the  note  should  be  given  up,  upon 
the  defendant's  giving  up  the  bond.  The  bond,  note,  and 
receipt  bore  the  same  date.  Held,  that  these  papers  consti- 
tuted one  contract ;  that  the  contract  was  valid ;  and  that  an 
action  would  not  lie  on  the  note,  without  a  previous  tender 
of  a  deed  of  the  land.-^  The  Court  say,  "  the  plaintiff,  on  his 
part,  agreed  to  convey  the  land  to  the  defendant  when  he 
should  pay  the  purchase-money,  and  the  defendant  agreed  to 
pay  the  purchase-money  when  the  plaintiff  should  convey  the 

1  Burton  v.  Johnson,  2  Cart.  339.  Warner   v.    Hatfield,   4    Blackf.    392  • 

'  McCuUofh  y.  Dawson,  1  Cart.  413.     Taylor  r.  Perry,  5  Blackf.  599  ;  Sniuii 
3  Hunt  V.  Livermore,  .5   Pick.   395  ;     v.  Henry,  a  Eng.  207. 

VOL.  II.  7  ^Z.    \\^'-^ 


'     TA     QKQ9i^^-^ 


74  LAW  OF  VENDORS  AND  PURCHASERS.    [CH.  XXXI. 

land.  As  no  time  for  the  conveyance  or  for  the  payment  is 
mentioned,  the  law  supplies  the  deficiency  by  providing  that 
the  contract  should  be  executed  in  a  reasonable  time.  It 
is  clear  to.  our  minds  that  the  contract  is  to  be  construed 
as  containing  dependent  stipulations.  Neither  party  in- 
tended to  trust  to  the  personal  security  of  the  other.  If 
Hunt  had  in  a  reasonable  time  offered  to  give  a  good  deed 
of  the  land,  and  had  demanded  payment  of  the  money  men- 
tioned in  the  note,  and  Livermore  had  refused  to  accept  the 
deed  and  to  pay  according  to  his  engagement.  Hunt  would 
have  had  his  remedy  at  law  against  Livermore  for  the  pur- 
chase money.  On  the  other  hand,  if  Livermore  had  in  a 
reasonable  time  offered  to  pay  his  note,  and  had  demanded 
a  deed,  and  Hunt  had  refused  to  accept  the  money  and  to 
give  the  deed  simultaneously,  Livermore  would  have  had 
his  remedy  at  law  against  Hunt  for  the  damages  sustained 
by  his  not  conveying  the  land  according  to  his  agreement, 
[f  the  stipulation  contained  in  the  receipt  of  the  plaintiff,  to 
deliver  up  the  note  upon  the  defendant's  delivering  up  the 
bond,  '  provided  the  bargain  is  not  carried  into  effect,'  were 
to  be  construed  to  give  either  party  an  election  at  his  own 
pleasure  to  annul  the  contract,  it  is  evident  that  the  contract 
could  never  be  carried  into  effect  against  him  who  should 
please  to  avoid  it.  It  would  in  effect  have  no  binding 
operation." ' 

7.  But,  although  the  law  requires  a  tender  of  a  convey- 
ance in  order  to  maintain  a  suit  upon  the  security  given  for 
the  price,  such  tender  need  not  be  absolute.  A  conditional 
tender  of  the  deed  on  payment  of  the  note  is  sufficient.^ 

8.  Upon  the  same  ground  it  has  been  often  held,  that 
vmnt  of  title  in  the  vendor  is  a  good  defence  to  an  action 
upon  a  note  given  for  the  purchase-money.  Thus,  in  an 
action  of  assumpsit  on  a  promissory  note  for  the  purchase- 
money  of  land,  it  is  a  good  defence  for  the  vendee  in  pos- 


1  Per  Putnam,  J.,  Hunt  f.  Livermore,        '^  Gorham  v.  Reeves,  1  Cart.  421. 
5  Pick.  397. 


CH.  XXXI.j  NOTES,    ETC.,   FOR   PURCHASE-MONEY.  75 

session  under  a  bond  for  the  title,  and  before  he  has  accepted 
a  deed,  to  show  failure  of  the  vendor's  title,  before  eviction, 
although  it  would  be  otherwise  after  he  has  taken  a  deed, 
with  covenants  of  warranty  ;  ^  or  that  the  vendor  was  not  the 
owner  of  the  land,  on  the  day  when  the  deed  was  to  be 
delivered  and  the  note  paid.^  So,  in  an  action  upon  a 
promissory  note,  a  plea,  that  the  consideration  of  the  note 
was  the  sale  of  certain  lands  to  the  defendant,  to  which  the 
plaintiff  represented  he  had  a  good  and  valid  title,  whereas 
in  fact  he  had  no  title,  is  a  bar.^ 

9.  The  only  consideration  of  a  promissory  note,  was  a 
promise  by  the  payee  to  convey  to  the  maker,  on  payment 
of  the  note,  a  tract  of  land,  if  the  payee  should  own  it,  and, 
if  not,  to  buy  it  of  the  owner  as  cheap  as  he  could,  and  let 
the  maker  have  it  at  cost.  The.  payee  died  insolvent,  before 
the  note  became  due,  without  any  title.  Held,  the  consid- 
eration of  this  note  had  totally  failed,  and  the  maker  might 
treat  it  as  a  nullity.^ 

10.  Plaintiff  sold  to  defendant  a  tract  of  land,  with  a 
cabin,  &c.,  and  contracted  to  deliver  possession  in  the  same 
situation  it  then  was.  The  cabin  being  burned  before  de- 
livery, the  value  of  the  cabin  and  rails  was  decreed  to  be  set 
off  against  the  judgment  at  law  on  the  bond  for  the  pur- 
chase money.^ 

11.  A.,  in  June,  1811,  agrees  to  purchase  a  house  of  B. 
for  <£  1,000,  paying  £300  down  ;  fall  possession  to  be  given 
by  the  1st  of  June,  1812.  B.  is  arrested  in  .June,  1811,  on 
which  A.  accepts  a  bill  for  B.  in  favor  of  B.'s  creditors, 
payable  if  the  house  should  be  given  up  on  the  1st  of  June, 
1812.  At  B.'s  request,  A.  puts  his  nephew  into  the  house  to 
take  care  of  it,  while  B.  remains  in  custody.  B.,  having  a 
bad  title  to  the  house,  gives  up  all  claim  to  it,  and  A.  pur- 
chases it  of  the  real  owner,  being  allowed  the  .£300  which 

1  Feemster  v.  May,  13  S.  &  M.  275  ;  ■2  Gorham  v.  Reeves,  1  Smith,  239. 

Wiggins  u.  McGimpsey,  13,  532;  John-  ^  Myers  v.  Aikman,  2  Scam.  452. 

son  V.  Jones,  13,  580  ;  Mobley  i-.  Keys,  *  Tillotson  v.  Grapes,  4  N.  H.  444. 

1^,677.  "  5  Combs  y.  Fisher,  3  Bibb,  51. 


10  LAW    OF   VENDORS   AND    I'UIICHASERS.  [CH.  XXXI, 

he  had  paid  to  B.  Held,  that  the  possession  which  A.  had 
of  the  house  from  B.  was  not  such  a  compliance  with  the 
condition  of  the  acceptance,  as  to  support  an  action  by  the 
holder  of  the  bill  against  A.' 

12.  The  plaintiff,  a  trustee  under  a  will,  contrary  to  the 
trust,  executed  to  the  defendant,  who  knew  of  the  trust,  a 
bond  for  the  conveyance  to  him,  at  a  stipulated  time,  of 
certain  of  the  testator's  real  estate,  taking  a  note  for  the 
purchase-money.  Held,  a  sufficient  defence  to  a  suit  for  an 
instalment  of  the  note,  that  the  plaintiff  never  could  make 
a  valid  conveyance  of  the  land  to  the  defendant.^ 

13.  Agreement,  when  certain  payments  should  be  made, 
to  convey  certain  lands.  Two  notes  were  made  at  the  same 
time,  and  the  agreement  referred  to  the  notes.  In  a  suit  on 
the  notes,  it  being  alleged  that  the  plaintiff  could  not  con- 
vey, not  having  title ;  held,  the  notes  and  the  agreement 
should  be  construed  together,  that  the  agreement  was  not 
the  real  consideration  of  the  notes,  but  the  estate  to  be  con- 
veyed, and,  if  the  plaintiff  could  not  give  a  good  title,  there 
was  a  failure  of  consideration.^ 

14.  At  the  time  of  giving  a  note  for  the  conveyance  of 
land,  it  was  agreed  in  writing,  that  if,  before  the  maturity  of 
the  note,  it  should  be  proved  that  the  grantor  had  no  title, 
the  note  should  not  be  paid.  Held,  the  maker  might  set  up 
such  agreement,  in  defence  to  a  suit  brought  on  the  note,  by 
one  to  whom  it  was  indorsed  before  maturity,  with  notice  of 
the  stipulation.* 

15.  Where  a  note  was  given  on  a  sale  of  real  estate,  to 
which  the  vendor  had  neither  title  nor  color  of  title,  nor 
possession;  held,  there  was  no  consideration  for  the  note, 
and  a  guarantor  thereof,  the  guaranty  being  made  when  the 
note  was  given  and  without  consideration,  was  not  liable.^ 

16.  In  an  action  of  assumpsit  on  a  note  for  the  price  of 
land,  under  an  agreement  that,  if  the  note  were  paid  at 

1  Swan  V.  Cox,  1  Mar.  176.  *  Beau  v.  Flint,  30  Maine,  224. 

■•2  Sweeney  v.  Sampson,  5  Ind.  465.'  '^  Fisher  v.  Salmon,  1  Cal.  413. 

3  Davis  V.  McVickers,  11  111.  327.  ^ 


en.  XXXI.]       *roTES,  etc.,  for  purchase-money.  77 

maturity,  the  payee  would  convey  the  land,  an  allegation  in 
the  plea,  that  the  payee  was  not,  when  the  note  was  exe- 
cuted, nor  had  been  from  thence  hitherto,  the  owner  in  fee 
of  the  land,  is  a  sufficient  denial  that  he  was  the  owner  at 
the  day  of  maturity  of  the  note.^ 

17.  Where  the  defendant  pleaded  that  the  notes  sued  on 
were  given  for  land,  and  that  the  consideration  had  failed, 
by  reason  of  the  plaintiff's  having  no  title  ;  held,  a  judgment 
in  favor  of  the  plaintiff  for  the  purchase-money,  and  a  decree 
in  favor  of  the  defendant  for  the  land,  would  not  preclude 
the  defendant  from  his  remedy  against  the  plaintiff,  if  the 
land  within  the  metes  and  bounds  should  prove  to  be  less 
than  was  contracted  for,  and  if  the  defendant  was  deceived 
by  the  plaintiff  as  to  the  quantity .^ 

18.  Action  upon  a  promissory  note,  payable  twelve  months 
after  date,  by  an  assignee.  Plea,  that  the  note  was  assigned 
after  it  became  due,  and  that  the, consideration  was  a  bond 
of  the  same  date  executed  by  the  payee  to  the  makers,  to 
convey  certain  lands  by  deed,  in  fee-simple,  with  general 
and  special  warranty,  within  four  months  from  the  date  of 
the  note,  and  that  the  payee  did  not  within  that  time  con- 
vey the  lands  according  to  his  covenant,  and  therefore  the 
consideration  of  the  note  had  failed.  Held,  a  bar.  So, 
likewise,  a  plea,  setting  forth  the  same  facts,  except  the 
failure  to  convey,  and  averring  that  the  payee,  neither  at  the 
date  of  the  note,  nor  within  said  four  months,  had  any  legal 
title  to  the  lands.  So  a  plea,  setting  forth  the  same  facts 
as  the  first  plea,  except  in  alleging  that  the  payee  had  not 
conveyed  the  premises,  and  it  was  out  of  his  power  to  con- 
vey them  according  to  his  covenant,  because  of  certain 
judgments  against  him,  which  were  liens  on  the  premises.^ 

19.  Where  a  mill  seat  was  the  object  of  the  purchase  of 
a  tract  of  land,  which  is  taken  away  by  an  elder  grant,  it  is 


1  Gorham  v.  Reeves,  1  Cart.  421.  ^  Tyler  v.  Young,  2  Scam.  444. 

-  Tisoii  I'.  Smith,  8  Tcxa^,  147. 

#7* 


78  LAW    OF    VENDORS    AND    PURCHASER*        [PlI.  XXXI. 

a  orood  cause  to  rescind  the  contract,  and  may  be  pleaded 
ill  discount  against  the  bond  given  for  the  consideration- 
money.' 

20.  In  case  of  a  purchase  of  the  interest  of  a  vendor  in  a 
remainder  in  fee,  expectant  on  an  estate  tail ;  if,  at  the  time 
of  the  contract,  the  tenant  in  tail  had  actually  suffered  a 
recovery,  of  which  both  parties  were  ignorant  till  after»the 
conveyance  had  been  executed,  and  an  absolute  bond  given 
for  the  purchase-money ;  equity  will  rescind  the  contract, 
and  order  such  bond  to  be  delivered  up  to  be  cancelled,  and 
that  all  interest  paid  on  it  shall  be  refunded,  (a)  But  the 
costs  were  not  allowed  on  either  side.^ 

,21.  A  promissory  note  was  made  for  the  purchase-money 
of  land,  conveyed  by  deed  with  warranty.  At  the  time  of 
the  conveyance  there  was  a  judgment  against  the  grantor, 
under  which  the  land  was  afterwards  sold  and  conveyed. 
Held,  an  action  on  the  note  could  not  be  maintained,  as  the 
consideration  had  wholly  failed ;  the  title  of  the  promisor 
being  extinguished -by  the  sale  under  the  judgment,  though 
he  had  not  yet  been  evicted ;  for  he  was  liable  to  be  evicted, 
and  was  responsible  for  the  mesne  profits.^ 

22.  Upon  the  same  principle,  a  partial  want  or  failure  of 
title  has  been  usually  held  to  constitute  a  partial  defence  to 
a  suit  upon  a  note  given  for  the  purchase-money.  Thus,  in 
an  action  upon  a  note,  given  for  the  purchase-money  of  land, 
over  and  above  the  amount  of  a  mortgage  on  the  land,  rep- 
resented by  the  vendor  to  be  a  certain  sum  ;  if  the  sum  due 
at  the  time  exceeded  that  amount,  the  excess  will  be  de- 
ducted from  the  amount  of  the  note.* 


1  Gray  v.  Hankinson,   1    Bay,  278;         ^  Frisbce  v.  HotFiiagle,  11  Johns.  50. 
Bell  V.  Huggins,  1  Bay,  327.  *  Stiles  v.  Sherman,  34  Maine,  344. 

■•^  Hitchcock  V.  Giddings,  4  Price,  135. 


(a)  Where  a  contract  for  the  sale  of  land  is  rescinded  in  equity,  the 
vendee  is  discharged  from  the  payment  of  his  purchase-money,  and  entitled 
to  have  his  bond  given  up.     Lowder  v.  Noding,  8  Ired.  Eq.  208. 


CH.  XXXI.]  NOTES,    ETC.,   FOR   PURCHASE-MONET.  79 

23.  A.  covenanted  with  B.  to  give  him  "  a  good  sufficient 
general  warranty  deed"  of  a  piece  of  land,  and  B.  paid  a 
part  of  the  purchase-money,  and  gave  his  note  for  the  bal- 
ance. A.  sued  the  note,  and  B.  filed  a  bill  in  equity  for 
specific  performance,  as  A.  had  tendered  a  deed,  which  re- 
served a  right  in  C.  to  dam  up  a  stream  running  through  the 
land,  but  which  was  known  to  B.  when  he  purchased.  Held, 
that  by  this  reservation  A.'s  covenant  was  broken,  as  he  was 
bound  to  make  a  title  clear  from  all  incumbrances,  and  that 
this  breach  was  a  good  defence  to  the  action  on  the  note, 
and  a  good  ground  for  the  bill  in  equity.  The  measure  of 
damages  was  held  to  be  the  deterioration  of  the  land  by  the 
existence  of  this  easement,  and  the  fact  of  B.'s  knowledge 
of  the  easement  was  held  not  to  affect  A.'s  covenant.^ 

24.  In  a  suit  by  the  assignee  of  a  note  against  the  maker, 
the  plea  was,  that  the  note  was  given  for  part  of  the  consid- 
eration of  the  sale  of  several  pieces  of  real  property,  of  which 
a  deed  with  covenants  of  clear  title  and  warranty  was  exe- 
cuted at  the  time  of  sale ;  that  at  that  time  two  of  them 
were  incumbered  by  judgments  and  mortgages  amounting 
to  more  than  the  note ;  that  the  defendant,  to  save  them,  had 
been  compelled  to  pay  off"  the  incumbrances  ;  that  the  note 
was  for  the  only  unpaid  part  of  the  purchase-money  ;  and 
that  the  payee  was  insolvent;  wherefore  the  consideration  of 
the  note  had  failed.  The  replication  was,  that  the  defendant 
paid  the  incumbrances  and  the  balance  of  the  purchase- 
money,  after  notice  of  the  assignment  of  the  note.  Held, 
the  plea  was  good,  and  the  replication  bad.^ 

25.  Evidence  of  fraudulent  representations  by  the  payee 
of  a  promissory  note,  as  to  the  value  of  the  land  for  which 
the  note  was  given,  has  been  held  admissible  to  show  a 
partial  failure  of  consideration,  in  a  suit  brought  by  one  to 
whom  the  note  was  indorsed  after  it  was  overdue.^ 

26.  The  general  rule  above  stated,  however,  is  subject  to 


1  Morgan  v.  Smith,  11  111.  194.  ^  Coburn  v.  Ware,  30  Maine.  202. 

-  Doremus  v.  Bond,  8  Blackf.  368. 


80  LAW  OF  VENDORS  AND  PURCHASERS.    [CH.  XXXI. 

qualifications  and  exceptions,  growing  out  of  the  language 
of  the  contract  or  the  circumstances  of  the  case. 

27.  Thus  it  is  held  to  be  no  defence  to  an  action  by  the 
payee  against  the  maker  of  a  promissory  note,  that  the  payee 
had  agreed  to  convey  an  estate  to  the  maker,  in  consideration 
of  a  sum  of  money  then  paid  or  secured  to  be  paid  to  the 
maker  (being  the  sum  mentioned  in  the  note)  and  of  a  further 
sum  to  be  paid  at  a  future  day,  and  that  such  estate  had 
never  been  conveyed.'  So,  when  a  bond  is  given  to  convey, 
on  payment,  with  a  right  in  the  purchaser  to  take  possession 
and  hold  till  some  failure  on  his  part,  and  notes  are  given  to 
secure  annual  payments,  those  notes  are  recoverable,  whether 
the  purchaser  takes  possession  or  not ;  although  it  would  be 
otherwise,  if  the  obligor  had  conveyed  away  his  title,  so  as 
not  to  be  able  to  fulfil  the  bond.^  So  a  defendant  cannot 
resist  payment  of  a  note  given  in  purchase  of  a  house  and 
lot,  on  the  ground  that  the  plaintiff"  had  no  title,  if  the  de- 
fendant remain  in  possession.^  So  a  vendee  who  takes  and 
retains  possession,  under  a  parol  contract  of  purchase,  can- 
not defeat  a  recovery  on  his  note,  given  for  the  purchase- 
money,  on  the  ground  of  want  or  failure  of  consideration,  it 
not  appearing  that  the  vendor  has  failed  or  refused  to  com- 
ply with  his  contract.*  So  a  purchaser  who  has  paid  part 
of  the  purchase-money,  and  given  a  bond  for  the  residue, 
and  is  in  undisturbed  possession,  will  not  be  relieved  against 
payment  of  the  bond,  or  proceedings  on  the  accompanying 
mortgage,  on  the  mere  ground  of  a  defect  of  title,  there  being 
no  allegation  of  fraud  in  the  sale,  nor  any  eviction  ;  but  must 
seek  his  remedy  at  law,  on  the  covenants  in  his  deed.^  So, 
where  land  was  conveyed  upon  condition  that  the  deed  should 
be  void,  if  the  notes,  which  were  the  consideration  for  the 
deed,  should  be  paid  before  a  specified  time,  and  the  notes 
were  not  paid  at  the  time ;  held,  the  condition  constituted  no 
defence  to  an  action  on  the  notes.^     So,  if  A.  gives  a  bond 

1  Spiller  V.  Westlake,  2  B.  &  Ad.  155.         -•  Gillespie  v.  Battle,  15  Ala.  276. 

2  Chandler  v.  Marsh,  .3  Verm.  161.  ^  Abbott  v.  Allen,  2  Johns.  Ch.  523. 

3  Islcr  V.  Egger,  17  Mis.  3.32.  "  Hodsdon  v.  Smith,  14  N.  H.  41. 


CH.  XXXI.]  NOTES,   ETC.,    FOR   PURCHASE-MONEY.  81 

to  convey  land  to  B.,  upon  payment  of  the  purchase-money, 
and  receives  notes  for  the  purchase-money,  and  afterwards 
sells  the  same  land  to  C. ;  B.  cannot  therefore  avoid  pay- 
ment of  the  notes,  because,  payment  being  a  condition  prece- 
dent, A.  is  not  in  default  until  payment.^  So,  when  the 
grantee  in  a  quitclaim  deed  gives  his  note  for  the  considera- 
tion, with  a  written  agreement  that  he  shall  pay  the  note, 
unless  within  twelve  months  he  shall  make  it  appear,  by 
due  course  of  law,  that  nAher  the  grantor  nor  his  wife  have 
any  claim,  as  heirs,  to  the  land  ;  the  grantee  cannot  defend 
an  action  on  the  note,  unless  he  has  complied  with  the 
agreement.''^  (a) 

28.  Action  on  a  promissory  note.  It  was  agreed  between 
the  plaintiff  and  defendant,  that  the  former  would  convey  to 
the  latter  certain  land,  if  certain  notes,  given  at  the  same 
time,  should  be  paid  at  maturity ;  and,  on  failure  of  such 
payment,  the  agreement  to  be  void ;  and  the  defendant  to  pay 
all  damages,  and  forfeit  any  previous  payments.  Held,  the 
notes  and  the  promise  to  convey  were  independent,  and  this 
suit  might  be  maintained,  without  showing  a  conveyance  or 
offer  to  convey  ;  and  that,  by  enforcing  the  no^^s,  the  plaintiff 
waived  the  right  to  avoid  his  covenant  to  convey  and  claim 
damages,  although  originally  he  might  elect  between  the 
two  modes  of  relief.^ 

29.  A  note,  founded  on  the  payee's  agreement  to  convey 

1  Foster  v.  Jared,  12  111.  451.  ^  Manning  v.  Brown,  1  Fairf.  51. 

2  Carters.  Harber,  18  Mis.  204. 


(a)  The  promisee  in  a  note,  by  an  agreement  under  seal,  executed  on 
the  same  day  with  the  note,  covenanted  with  the  promisor,  that,  "  if  said 
note  should  not  be  paid  at  the  expiration  of  the  said  ten  years,"  he  would 
"  give  up  said  note  "  to  the  promisor,  provided  the  latter  should  execute  to 
him  a  quitclaim  deed  of  certain  land.  Held,  this  agreement  (assuming  that 
the  note  and  agreement  constituted  an  entire  transaction,  which  the  Court 
did  not  decide)  did  not  preclude  the  promisee  from  enforcing  payment  of 
the  interest,  and  such  instalments  as  should  become  due,  before  the  expira- 
tion of  the  ten  years.     Ewer  v.  My  rick,  1  Cush.  16. 


82  LAW    OF    VENDORS    AXD    PURCHASERS.  [ril.  XXXI. 

to  the  promisor  land  belonging  to  a  third  person,  the  payee 
having  notice  of  such  ownership,  is  not  invalid  for  want  of 
consideration  ;  if  the  owner  conveys  to  the  promisor,  in 
execution  and  pursuance  of  the  contract,  and  the  promisor 
accepts  the  title.i  So  the  plaintiff,  holding  a  Mrritten  agree- 
ment of  A.  that  he  would  convey  to  the  plaintiff  certain 
premises,  sold  them  by  parol  to  the  defendant,  with  the 
assent  of  A.,  and  the  name  of  the  defendant  was  by  mutual 
consent  inserted  in  the  written  ag||pment  of  A.,  in  the  place 
of  the  plaintiff  It  afterwards  appeared,  that  A.  had  no  title. 
Held,  in  an  action  on  a  note  given  for  the  price,  the  defend- 
ant could  not  set  up  a  failure  of  consideration,  for  between 
the  plaintiff  and  defendant  the  agreement  was  completely 
executed,  and  the  defendant  acquired  all  the  title  which  the 
plaintiff  pretended  to  have,  or  assumed  to  sell,  and,  by  the 
agreement  for  which  the  note  was  given,  the  defendant  be- 
came entitled  to  demand  the  deed  of  A.^  So,  where  a  pur- 
chaser executed  a  note,  at  the  request  of  the  vendor,  to  a 
stranger,  for  the  purchase-money  ;  held,  he  could  not  defend 
an  action  on  the  note,  on  the  ground  of  failure  of  considera- 
tion, because  the  vendor  had  not  conveyed  the  legal  title  to 
him.3  So,  where  the  trustees  of  a  land  company,  in  whom 
the  legal  title  to  the  land  owned  by  the  company  was  vested, 
received  a  promissory  note  of  a  purchaser  of  a  lot,  and  agreed 
to  convey  the  same  to  him  on  payment  of  the  note,  and 
afterwards  one  of  the  trustees  relinquished  his  trust,  and 
made  a  conveyance  of  his  interest  in  the  land  of  the  com- 
pany to  the  other  trustees  ;  it  was  held,  that,  notwithstanding 
such  relinquishment  and  conveyance,  an  action  might  be 
maintained  on  the  note  in  the  name  of  all  the  trustees.^ 

30.  In  an  action  upon  a  bill,  drawn  by  one  who  agrees  to 
execute  a  lease  upon  the  proposed  lessee,  for  the  agreed 
consideration,  and  accepted  by  the  latter,  who   also  takes 


1  Trask    v.  Vinson,    20   Pick.    105,         '  Glascock  w.  Rand,  14  Mis.  550. 
no.  *  Cartwright   v.    Gardner,    5    Gush. 

2'Condrey  v.  West,  11  111.  146.  273. 


CH.  XXXI.]  NOTES,    ETC.,    FOR   PURCHASE-MONEY.  83 

possession  ;  it  is  no  defence  that  the  former  refused  to  exe- 
cute the  lease.     The  remedy  is  on  the  agreement.^ 

31.  *It  is  held,  that  a  partial  failure  of  title  to  land  con- 
veyed constitutes  no  defence  to  a  note  given  in  payment 
for  it.2 

32.  The  plaintiff,  having'  a  patent  for  land,  sold  the  land 
to  the  defendant,  giving  him  a  bond  for  a  good  deed  on 
payment  of  the  purchase-money,  for  which  the  defendant 
gave  his  note.  In  an  action  on  the  note,  the  defendant  re- 
lied upon  an  equity  in  A.,  by  showing  a  receipt  to  A.  from 
the  land-office  of  money  paid  by  him  for  the  land.  Held, 
the  bond  was  a  good  and  valuable  consideration  for  the 
note,  which  was  not  impaired  by  the  equity  in  A.^ 

33.  Plaintiff  and  defendant  entered  into  a  written  agree- 
ment, the  latter  to  sell  and  the  former  to  buy  a  tract  of  land 
for  $2,000,  possession  to  be  given  on  the  1st  of  May,  when 
$1,000  was  to  be  paid.  The  land  was  under  mortgage,  but 
on  the  1st  of  May  a  release  of  the  mortgage  was  prepared 
to  be  delivered  when  the  $1,000  was  paid.  On  the  loth  of 
May,  the  plaintiff  gave  to  the  defendant  his  note  for  $175 
in  part-payment  of  the  purchase-money,  which  the  defend- 
ant transferred,  and  the  plaintiff  was  obliged  to  pay.  The 
plaintiff  brings  this  action  to  recover  the  money.  Held,  he 
could  not  recover.^ 

34.  A.  executed  to  B.  a  note  for  the  price  of  land,  on 
which  C.  had  a  mortgage.  The  note  was  to  be  paid  by 
instalments,  to  meet  the  instalments  on  the  mortgage.  A. 
failed  to  pay  the  note,  by  which  means  B.  was  prevented 
from  paying  the  mortgage.  The  mortgage  was  therefore 
foreclosed,  and  A.  became  the  purchaser  of  the  land,  under 
the  mortgage.  Held,  that  A.,  by  his  own  fault,  had  caused 
the  failure  to  pay  the  mortgage,  and  therefore  could  not  set 
up  these  facts  as  a  defence  to  the  note.^ 

35.  In   an  action  on  a  note  for  the  purchase-money  of 

1  Moffgridge  v.  Jones,  14  E.  486  :  3         ^  Long  v.  Allen,  2  Florida,  403. 
Carap.  Ca.  38.  *  Garlock  v.  Lane,  15  Barb.  359. 

2  Morrison  i'.  Jewell,  34  Maine,  146.  ^  Clark  v.  Gondii,  11  Mis.  79. 


84  LAW    OF. VENDORS   AND    PURCHASERS.  [cil.  XXXI. 

land,  it  is  no  defence  for  the  gnintee  to  set  up  a  title  which 
he  has  made  by  the  purchase  of  a  prior  incumbrance,  be- 
yond the  amount  paid  for  such  incumbrance ;  whether  he 
purchased  the  incumbrance  directly,  or  was  substituted  for 
the  purchaser  at  a  sheriff's  sale ;  and  the  grantee  may  be 
enjoined  by  a  Court  of  Equity  from  setting  up  such  a  title 
against  the  vendor,  in  an  action  at  law  on  the  note.^ 

36.  A.,  the  owner  of  land,  contracted  verbally  for  the  sale 
of  it  to  B.,  and  B.  sold  it  to  C,  who  received  a  conveyance 
from  A.,  with  general  warranty,  and  executed  his  bonds  to 
B.  for  a  balance  of  the  purchase-money.  At  the  time  of 
the  sale,  the  lot  was  rendered  more  valuable  by  a  change  in 
a  street,  which  street  was  afterwards  restored  to  its  original 
location  by  the  town  authorities.  Held,  that  B.,  having 
made  no  representations  to  C,  and  not  having  been  guilty 
of  any  fraud,  and  having  made  no  warranty  of  title,  was  not 
liable  to  C.  for  any  damage  he  had  sustained ;  and  that  C. 
could  not  enjoin  the  collection  of  the  purchase-money.^ 

37.  The  law  of  Mississippi  gives  the  maker  of  a  promis- 
sory note  the  benefit  of  all  defences,  of  want  of  consider- 
ation, failure  of  consideration,  payments,  discounts,  and  set- 
offs, against  an  indorsee,  which  he  had  against  the  payee, 
previously  to  notice  of  the  indorsement.^  But  it  is  no  de- 
fence, in  an  action  on  a  note  in  the  hands  of  a  bond  fide 
holder  for  value,  without  notice,  that  it  was  given  for  the 
purchase  of  the  equitable  title  to  land,  from  which  the  maker 
has  been  ejected  by  a  judgment  at  law,  he  knowing  at  the 
time  of  the  purchase  that  he  bought  but  an  equitable  title.^ 
So  the  resale  or  rescission  of  a  sale  of  lands  is  no  defence  to 
an  action  on  a  note  for  the  purchase-money,  brought  by  a 
bond  fide  holder  of  the  note,  who  became  such  before  the 
resale  or  rescission,  and  with  the  knowledge  of  the  first  pur- 
chaser.^    Neither  is  it  a  defence  that  the  land  has  been  sold 

'  Champlin   v.   Dotson,  13   S.  &  M.  *  Green  v.   McDonald,  13   S.  &  M. 

553.  445. 

2  Price  y.  Avers,  10  Gratt.  575.  ^  Wiggins  v.   McGimpsey,   13  S.  & 

3  Brubston  v.  Gibson,  9  How.  263.  M.  532. 


OIL  XXXI.]  NOTES,    ETC.,   FOR   PURCHASE-MONEY.  85 

under  a  judgment  rendered  prior  to  the  sale,  where  the  land 
had  been  reconveyed  to  the  grantor,  and  the  grantee  knew 
his  note  to  be  in  the  hands  of  a  bond  fide  holder.^ 

38.  On  the  sale  of  a  plantation,  in  Louisiana,  the  vendor 
reserved  the  right  of  redemption,  which  right,  according  to 
the  laws  of  Louisiana,  may  be  exercised  against  a  bond  fide 
purchaser,  without  notice  of  the  right.  Notes  were  given 
for  the  purchase-money,  payable  in  Mississippi,  and  secured 
by  a  mortgage  of  the  plantation.  These  notes  were  after- 
wards indorsed  in  Mississippi,  without  the  knowledge  of  the 
maker,  as  collateral  security  for  a  debt  due  from  the  payee 
to  the  indorsee.  The  vendor  redeemed  the  plantation,  and 
agreed  to  assume  the  outstanding  notes,  and  gave  the  orig- 
ginal  vendee  a  mortgage  on  the  plantation  to  secure  their 
payment.  Held,  that  these  facts  constituted  no  defence, 
under  the  statute  of  Mississippi,  to  a  suit  brought  in  Louis- 
iana on  the  notes  by  the  indorsee  against  the  maker.  So, 
although  the  notes  were  indorsed  "  ne  varietur  "  by  the  no- 
tary, at  the  time  of  the  original  sale  of  the  plantation.^ 

89.  The  question  has  often  arisen,  whether,  in  an  action 
upon  a  promissory  note,  given  for  the  purchase-money  of 
land,  which  is  conveyed  by  deed  with  covenants  of  war- 
ranty; the  maker  of  such  note  may  set  up  as  a  defence,  in 
whole  or  in  part,  the  breach  of  those  covenants ;  and  also 
whether  this  may  be  done,  only  after  an  eviction  or  disturb- 
ance by  virtue  of  an  adverse  title  to  which  such  covenants 
apply,  or  simply  by  showing  the  existence  of  the  adverse 
title.  Upon  this  subject  the  decisions  in  different  States 
have  been  somewhat  diverse. 

40.  By  the  Supreme  Court  of  the  United  States  it  ha& 
been  held,  that,  where  a  promissory  note  was  given  for  the 
purchase  of  real  property,  the  failure  of  consideration  through 
djfect  of  title  must  be  total,  in  order  to  constitute  a  good 
crefence  to  an  action  on  the  note.     And  it  was  doubted, 


1  Wiggins  V.  McGimpscy,    13  S.  &         -  Brabstou  v.  •bson,  9  How.  263. 
M.  .532.  ^ 

VOL.    II.  8 


86  LAAV    OP   VENDORS   AND   PURCHASERS.  [CH.  XXXI. 

whether,  after  receiving  a  deed,  the  party  could  avail  himself 
even  of  a  total  failure  of  consideration.  But,  where  the 
note  is  given  with  full  knowledge  of  the  extent  of  the  in- 
cumbrance, and  the  party  thus  consents  to  receive  the  title, 
its  defect  is  no  legal  bar  to  an  action  on  the  note.  And  any 
partial  defect,  in  the  title  or  the  deed,  is  not  inquirable  into 
by  a  Court  of  Law,  in  an  action  on  the  note ;  but  the  party 
must  seek  relief  in  Chancery.' 

41.  In  Massachusetts  it  has  been  doubted  whether,  in  an 
action  by  the  promisee  upon  a  negotiable  promissory  note, 
given  for  the  purchase-money  of  land  conveyed  by  warranty 
deed,  it  is  competent  to  set  up,  by  way  of  defence,  a  total 
want  of  title  in  the  grantor  at  the  time  of  the  conveyance, 
and  an  eviction  of  the  grantee.  But,  where  the  promisee 
had  died  insolvent,  and  the  action  was  brought  by  the  ad- 
ministrator of  an  indorsee,  who,  at  the  time  of  the  indorse- 
ment, had  notice  that  the  title  was  questioned ;  such  defence 
was  allowed  under  the  general  issue,  since  the  defendant 
could  not  plead  the  demand  on  the  covenants  by  way  of 
set-ofF,  nor  avail  himself  of  it  in  a  cross  action  ;  and  in  such 
case  the  plaintiff  may  introduce  evidence,  that  the  value  of 
the  land,  at  the  time  of  eviction,  was  less  than  the  amount 
of  the  note.2 

42.  In  Maine  it  has  been  held,  in  an  action  by  the  payee 
upon  a  note  given  for  land  conveyed  by  warranty  deed,  that 
it  is  not  competent  to  set  up  a  partial  or  total  failure  of  title, 
or  a  want  of  title,  in  the  grantor,  at  the  time  of  the  conveyance. 
And,  where  the  deed  contained  an  express  condition,  that, 
upon  breach  of  any  covenant  therein,  the  damages  might  be 
payable  by  cash  to  the  amount  received  in  money,  and  the 
residue  by  delivering  up  such  of  the  notes  as  should  remain 
unpaid ;  in  an  action  upon  one  of  such  notes,  some  having 
been  paid,  the  defendant  was  not  permitted  to  show  a  brea||^ 
in  the  covenant  of  seizin  as  to  part  of  the  land,  to  the 
value  of  the  note  declared  on.^ 

# 

'  Greenleaf  v.  Cook,  2  Wheat.  13.  ^  Lloyd  v.  Jewell,  1  Greenl.  352. 

2  Knapp  V.  Lee,  3  Pick.  452. 


CH.  XXXI.]  NOTES,    ETC.,    FOR    PURCHASE-Mb^EY.  87 

43.  Action  upon  a  promissory  note,  given  as  the  consid- 
eration of  land  conveyed  with  the  usual  covenants  of  seizin, 
of  warranty,  and  against  incumbrances.  At  the  time  of  the 
conveyance  there  was  an  attachment  upon  the  land ;  after- 
wards judgment  was  rendered  in  the  suit,  and  the  execution 
levied  upon  the  whole  of  the  land  conveyed.  The  grantee 
did  not  redeem,  but  suffered  a  title  to  be  acquired  under  the 
levy  ;  but  it  was  not  shown  that  the  land  was  appraised  at 
its  full  value,  nor  that  the  grantee  had  not  received  rents 
and  profits.  Held,  a  total  failure  of  consideration  for  the 
note  was  not  shown.  And  a  partial  failure  of  title  would 
not,  it  seems,  constitute  a  defence  pro  tanto} 

44.  In  a  still  later  case,  it  is  said  not  to  have  been  authori- 
tatively settled,  that  a  total  want  of  title  will  not  be  a  good 
defence  to  such  note,  except  in  the  hands  of  an  innocent 
indorsee.  But,  where  the  conveyance  is  by  deed  with  cov- 
enants of  warranty,  the  defect  of  title  must  be  entire,  so 
that  nothing  valuable  passes  by  the  conveyance.  Otherwise 
it  becomes  a  case  of  unliquidated  damages,  and  the  remedy 
is  by  an  action  of  covenant  broken.^  [a) 

45.  In  New  Hampshire,  in  case  of  a  warranty  deed,  a 
partial  failure  of  title  will  not  constitute  a  defence  to  the 
note,  but  the  remedy  must  be  by  suit  on  the  covenants.^ 

46.  In  New  York,  a  plea  of  want  of  seizin,  in  a  vendor 
who  has  conveyed  with  a  covenant  of  seizin,  is  no  bar  to 
an  action  of  debt  on  a  bond  given  for  the  purchase-money. 
Where  the  purchaser  has  acquired  any  estate  or  interest 
whatever,  or  obtained  any  benefit  by  the  conveyance,  he  can- 
not plead  want  of  seizin  ;  but  must,  with  his  plea,  give  notice 

1  Wcntworth  v.  Goodwin,  21  Maine,         ^  Jenncss  v.  Parker,  24  Maine,  289. 
150.  '^  Chase  v.  Weston,  12  N.  H.  413. 


(a)  In  case  of  a  conveyance  by  deed  of  release  and  quitclaim,  without 
covenants,  it  is  not  a  good  defence,  that  the  plaintiff  represented  his  title  to 
be  in  fee-simple,  when  it  was  but  an  estate  for  life  or  for  years ;  nothing 
short  of  a  total  failure  of  title  being  in  such  case  a  sufficient  defence.  How- 
ard V.  Witham,  2  Greenl.  .390. 


88     •  LAW   OF   VENDORS   AND    PURCHASERS.         [CH.  XXXI. 

of  the  facts  he  relies  upon,  to  reduce  the  amount  of  the  recov- 
ery as  for  a  partial  failure  of  consideration.  Where  there  has 
been  an  eviction,  and  the  purchaser  is  liable  to  the  true  owner 
for  mesne  profits,  to  an  amount  equal  to  the  sum  demanded 
of  him  by  his  vendor,  he  may  plead  such  facts  in  bar  of  the 
action,  as  showing  a  total  failure  of  consideration;  but  it  is 
doubted  whether  a  total  or  partial  failure  of  consideration 
by  reason  of  defect  of  title  can  be  shown  where  the  convey- 
ance was  with  warranty,  and  there  has  not  been  an  eviction. 
And  the  general  doctrine  is  laid  down,  that,  where  a  sale 
has  been  consummated  by  a  deed,  without  fraud  or  deceit, 
the  purchaser  cannot  by  his  own  act  repudiate  the  contract; 
he  must  apply  to  chancery ;  and  even  that  Court  will  not  in 
general  interfere,  if  there  be  covenants  in  the  deed.^ 

47.  In  Mississippi,  there  must  be  a  total  failure  of  consid- 
eration, and  an  actual  eviction,  or  what  is  equivalent  thereto, 
to  enable  the  maker  of  a  note,  given  for  the  purchase-money 
of  land,  who  is  in  possession  under  a  deed  containing  a 
general  covenant  of  warranty,  to  avail  himself  of  the  failure 
of  his  title  as  a  defence  to  an  action  at  law  upon  the  note.^ 
In  Alabama,  neither  fraud  nor  failure  of  consideration  is  a 
good  defence  at  law  to  a  note  given  for  the  purchase-money 
of  land,  when  the  vendee  has  accepted  from  the  vendor  a 
deed  with  covenant  of  warranty.^  In  Indiana,  the  existence 
of  incumbrances  upon  land,  conveyed  with  a  covenant  against 
incumbrances,  is  no  defence  to  a  suit  on  a  note  given  for 
the  purchase-money,  unless  the  purchaser  has  been  evicted 
or  has  paid  money  to  remove  the  incumbrance.^  Thus  to 
an  action  upon  such  note,  it  was  pleaded  in  bar,  that  the 
land  was  conveyed  with  a  warranty  against  incumbrances ; 
that  it  was  then  subject  to  unpaid  taxes,  unknown  to  the 
grantee :  and  had  since  been  sold  therefor  and  a  certificate 
given  to  the  purchaser.  Held,  the  plea  was  bad,  as  showing 
no  eviction,  nor  that  the  land  might  not  be  redeemed.^     But, 

1  Tallmade  v.  Wallis,  25  Wend.  107.         *  Clark  v.  Snelling,  1  Cart.  382. 

2  Glenn  V.  Thistle,  23  Miss.  42.  ^  Streeter  v.  Henley,  1  Cart.  401. 

3  Patton  V.  England.  15  Ala.  69. 


CH.  XXXI.]  NOTES,    ETC.,    FOR   PURCHASE-MONEY.  89 

in  Illinois,  in  an  action  on  a  note,  a  breach  of  covenant  of 
warranty  in  a  deed  of  land,  for  the  price  of  which  the  note 
was  given,  is  a  sufficient  defence.^  (a) 

1  Slack  V.  McLagan,  15  111.  242. 

(a)  In  connection  with  the  subject  of  covenants,  treated  in  the  text,  it 
may  be  added,  that,  in  a  scire  facias  suit  upon  a  mortcjage,  the  mortgagor 
may  show  in  defence  an  eviction  from  part  of  tlie  mortgaged  premises  by  a 
paramount  title.  Steinhauer  v.  Witman,  1  S.  &  11.  447.  See  Hilliard  on 
Mortgages,  ch.  20. 

So,  where  land  is  conveyed  with  covenant  of  warranty,  and  the  purchasers 
are  evicted  from  part  of  the  premises,  or  a  judgment  in  ejectment  is  recov- 
ered against  them  ;  on  a  bill  in  equity  by  the  vendor  for  foreclosure  of  a 
mortgage  given  for  a  part  of  the  purchase-money,  the  purchasers,  or  those 
claiming  under  them,  may  avail  themselves  of  the  failure  of  title  as  a  de- 
fence, and  the  Court  will  either  stay  the  proceedings,  until  the  damages 
are  ascertained  by  a  suit  at  law,  or  will  direct  an  issue,  or  a  reference  to  a 
master,  to  ascertain  the  damages,  before  decreeing  a  recovery  upon  the 
mortgage.  As  a  general  rule,  it  will  be  referred  to  a  master  to  ascertain 
the  damages,  unless  the  complainant  requires  a  trial  at  law.  Coster  v. 
Monroe,  &c.  1  Green,  Ch.  467. 

A.  sold  to  B.  a  plantation  of  six  hundred  and  thirty  acres  of  land,  with 
covenants  of  warranty,  together  with  certain  personal  property,  and  the 
gi'owing  crop,  for  a  gross  amount,  foi'  which  B.  gave  his  notes  payable  in. 
instalments.  A.  represented  his  title  to  be  good,  knowing  it  to  be  defective. 
There  was  an  outstanding  title  to  five  hundred  and  seventy  acres  of  the 
land,  the  owners  of  which  obtained  possession  after  the  purchase.  Held, 
equity  would  grant  relief,  and  decree  a  rescission  of  the  contract,  after 
judgment  on  the  notes  given  for  the  purchase-money.  Parham  v.  Randolph, 
4  How.  (Miss.)  435. 

But  an  assignee  of  a  covenant  contained  in  a  warranty  deed  is  not  aiTected 
by  any  equities  existing  between  the  original  parties.  Thus,  where  premises 
were  conveyed  subject  to  a  mortgage,  and  it  was  agreed,  at  the  time  of  the 
conveyance,  that  the  grantee  should  assume  payment  of  the  mortgage,  and 
pay  to  the  grantor  only  the  difference  between  the  amount  thereof  and  the 
consideration  of  the  conveyance,  and  that  the  covenants  of  warranty  and 
for  quiet  enjoyment  should  not  extend  to  the  mortgage ;  held,  such  agree- 
ment could  not  be  set  up  in  bar  to  an  action  brought  by  the  assignee  of  the 
covenantee,  who  was  evicted  under  the  mortgage.  Suydam  v.  Jones,  10 
Wend.  180,  184. 

So  a  defence  to  a  bill  for  foreclosure  was  denied,  because  the  party  merely 
alleged  an  outstanding  title.     Van  Waggoner  v.  M'Ewen,  1  Green,  Ch.  412. 
8* 


90  LAW  OF  VENDORS  AND  PURCHASERS.    [CH.  XXXI. 

Conveyance  to  the  president  of  an  ineorijorated  company  and  his  suc- 
cessors in  trust  for  the  stockliohlers.  Tiie  president,  under  a  power  from 
the  stockliolders,  conveyed  and  delivered  possession  to  the  defendant,  liav- 
ino-  notice  of  liis  title,  and  took  notes  lor  the  price,  secured  by  mortgage  of 
the  property.  In  a  bill  to  foreclose,  brought  by  an  assignee  of  one  of  the 
notes,  the  mortgagor  sought  to  flefend,  upon  the  ground  tiiat  the  deed  to  the 
president  was  void,  but  did  not  allege  any  i'raud  or  mistake.  There  had 
been  no  eviction.  Held,  no  defence  to  the  suit.  Natchez  o.  Minor,  D  Sm. 
&  M.  544. 

Conveyance  with  warranty,  and  a  bond  and  mortgage  back  to  secure  the 
price.  The  mortgagor  brings  a  bill  in  equity  for  an  injunction  of  a  suit  at 
law,  upon  the  ground  of  a  failure  of  consideration  of  these  securities,  con- 
sisting In  a  want  of  title  in  the  mortgagee.  It  appeared,  that  the  plaintiff 
had  taken  possession  and  never  been  evicted  ;  that  the  securities  had  been 
assigned,  for  value ;  and  that  the  plaintiff,  in  consideration  of  forbearance, 
gave  the  assignee  a  new  bond  and  mortgage,  the  latter  having  no  notice  of 
any  fraud  or  failure  of  consideration  In  the  original  transaction.  Held,  the 
bill  could  not  be  maintained.     Bumpus  v.  Platner,  1  Johns.  Ch.  213. 

Where,  in  a  sale  of  land,  although  with  covenants  of  warranty,  there  has 
been  fraud  on  the  part  of  the  vendor,  consisting  either  of  misrepresentation 
or  concealment,  the  vendee  may  go  into  equity  for  relief.  So,  though  the 
outstanding  title  was  on  record.  So,  it  seems,  though  there  has  been  no 
eviction.  But,  if  the  contract  is  entire,  and  there  is  a  failure  of  title  as  to 
a  part  of  the  land,  which  is  essential  to  the  perfect  enjoyment  of  the  re- 
mainder, in  the  manner  contemplated  by  the  purchaser,  Chancery  will 
rescind  the  contract.  It  seems,  this  is  the  proper  remedy.  Parham  v.  Ran- 
dolph, 4  How.  (Miss.)  435. 

In  connection  with  the  subjects  of  this  chapter,  the  following  cases  Illus- 
trate in  several  particulars  the  power  and  action  of  a  Court  of  Equity : — 

A.  made  an  agreement  for  the  sale  of  lands  with  B.  and  C.,took  the  notes 
of  the  latter,  with  D.  and  E.  as  sureties,  and  gave  his  bond,  conditioned  to 
make  titles,  when  the  notes  were  paid.  B.  and  C.  assigned  the  bond  to  D. 
and  E.,  to  indemnify  them  for  becoming  sureties.  A.  dying,  and  D.  and  E. 
being  in  possession  of  the  lands,  and  D.,  exercising  a  control  over  them,  D. 
paid  the  last  note  due,  after  suit,  and  took  from  A.'s  representatives  and 
heirs  a  bond,  conditioned  for  the  executing  of  a  title  to  D.  within  a  specified 
time.  On  the  expiration  of  this  time,  D.  brought  his  action  upon  the  bond, 
and  the  present  bill  was  filed  by  A.'s  representatives  for  specific  perform- 
ance. Held,  the  administrator  was  entitled  to  a  specific  execution  of  the 
contract  of  his  intestate,  and  the  heirs  might  well  become  parties  to  the 
suit ;  that  the  bond,  executed  by  the  plaintiffs,  was  without  consideration 
and  void ;  that  the  plaintlfis,  in  bringing  this  suit,  had  a  right  to  make  the 
bond  a  part  of  the  case,  and,  in  decreeing  a  specific  execution.  Chancery 


CH.  XXXI.]  NOTES,   ETC.,   FOR   PURCHASE-MONEY.  91 

could  decree  also  a  cancellation  of  the  bond  ;  that  it  was  a  just  excuse  ibr 
delay  to  file  this  bill,  that  the  party  holding  the  bond  of  the  intestate  might 
have  applied  to  the  Orphans'  Court,  and  there  perfected  a  title  ;  that  the 
assignment  of  the  bond  to  the  sureties  created  an  equitable  mortgage  of  the 
lands  in  favor  of  the  latter,  which  might  be  foreclosed ;  and  that  it  was 
essential  to  make  all  the  heirs  of  the  vendor,  and  of  the  assignee  of  the 
vendees,  parties  to  the  cause,  before  a  decree  could  be  rendered ;  but  that 
all  the  amendments  for  this  purpose  could  be  made  on  remanding  the  case 
to  the  Court  below,  on  a  mandate  from  the  higher  Court.  Hays  v.  Hall, 
4  Port.  Eq.  374. 

A  purchaser  with  notice  of  an  adversary  claim  to  part  of  the  land,  not 
asking  rescission,  shall  not  have  compensation  for  the  part  lost.  Morrison 
V.  Caldwell,  5  Monr.  439. 

#0,  where  a  purchaser  with  warranty  had  full  notice  of  the  adverse 
claims  to  the  pi'operty,  he  cannot  have  rescission,  because  the  warrantor 
becomes  insolvent,  and  he  fears  a  loss  of  the  land.  Where  a  part  of  the 
land  is  lost,  and  the  warrantor  insolvent,  the  purchaser  may  have  compen- 
sation, by  injunction  against  a  judgment  for  the  balance  of  the  purchase- 
money.  But,  if  he  had  notice  of  the  adverse  claim  before  his  purchase,  he 
cannot  have  an  injunction,  and  the  cause  delayed,  till  the  adverse  claim 
be  tried  in  another  Court.  A  purchaser  may  have  an  injunction  against  a 
judgment  for  a  balance  of  the  purchase-money,  for  the  damages  caused  by 
breach  of  warranty,  the  warrantor  being  insolvent ;  although  recovered  by 
a  bond  fide  assignee  of  the  obligation,  without  notice.  Rawlins  v.  Timberlake, 
6  Monr.  230. 

Upon  the  ground  that  a  Court  of  Equity,  in  Massachusetts,  has  no  power 
to  decree  specific  perforuiance  of  a  contract,  unless  every  part  of  it  has 
been  reduced  to  writing ;  where  the  defendant  contracted  in  writing  to 
execute  and  deliver  a  deed  of  land,  upon  payment  of  certain  notes  given 
for  the  purchase-money,  and  made  a  subsequent  verbal  promise,  to  deliver 
the  deed  upon  payment  of  the  notes  before  they  should  fall  due ;  it  was 
held,  that  a  bill  in  equity  against  him  for  specific  performance  of  the  con- 
tract, as  modified  by  the  verbal  agreement,  could  not  be  sustained.  Brooks 
V.  Wheelock,  11  Pick.  439,  440. 

The  following  cases  further  illustrate  the  rights  and  duties  of  the  respec- 
tive parties,  in  connection  with  notes  given  for  the  purchase-money  of  land 
sold,  and  the  payment  of  such  notes : — 

For  the  first  payment  under  a  contract  for  the  purchase  and  sale  of  land, 
the  vendee  drew  a  bill  of  exchange,  payable  at  the  time  when  a  conveyance 
of  the  land  was  agreed  to  be  made,  which  was  dishonored  at  maturity,  and 
the  vendee  was  then  insolvent.  Held,  that  the  vendor  might  rescind  the 
contract,  and  refuse  to  convey ;  and,  having  done  so,  his  administrator 
could  not  revive  it.     Todd  v.  Caldwell,  10  Texas,  236. 


92  LAW    OF   VENDORS   AND    PURCHASERS.  [CII.  XXXI. 

A.  ajzirced  with  B.,  that,  in  consideration  of  a  certain  sum,  he  would  con- 
vey to  B.  a  certain  tract  of  land,  and  the  juirchase-uioney  was  secured  by 
notes,  payable  in  tlu-ee  years.  It  was  further  agreed,  that  15.  should  take 
possession,  and  pay  annually,  for  three  years,  a  certain  portion  of  the  crop ; 
if  B.  thus  paid  for  the  land  in  three  years,  the  deed  was  to  be  given  ;  if 
not,  the  annual  payment  was  to  be  considered  as  rent,  and,  at  the  end  of 
the  three  years,  the  land  to  be  surrendered  by  B.  Held,  if  the  annual  pay- 
ments amounted  at  the  expiration  of  four  years  to  the  price  agreed,  the 
bargainee  claiming  that  they  should  be  so  applied,  although  the  bargainor 
insisted  that  they  should  be  considered  onlj^  as  rent,  the  bargainee  was 
entitled  to  a  conveyance.     Wells  v.  Wells,  3  Ired.  Ch.  596. 

Upon  the  general  subject  of  the  rights  and  duties  of  the  parties  in  refer- 
ence to  title,  it  may  be  here  added,  that,  while  the  vendee  may  set  up  the 
vendor's  want  of  title,  in  defence  against  a  claim  for  specific  performE^lce 
or  for  the  purchase-money  ;  it  has  been  held,  that  a  vendor  cannot  exempt 
himself  from  his  obligation  and  agreement  to  convey,  on  the  ground  that  he 
has  not  the  legal  title.  It  is  said,  a  vendor  has  no  interest  in  setting  up  his 
own  want  of  title.     Jones  t'.  Belt,  2  Gill,  106. 

It  has  been  held,  that  a  bond  fide  vendor,  believing  he  has  title,  cov- 
enanting to  convey,  and  discovering,  before  any  part  of  the  consideration 
is  paid,  a  defect  in  his  title,  is  not  liable  to  damages  for  refusing  to  convey. 
Otherwise,  If  he  acts  mala  fide,  and  refuses  to  convey  because  the  property 
has  increased  In  value.  Baldwin  v.  Munn,  2  Wend.  399  ;  Bitner  v.  Brough, 
11  Penn.  127. 


CH.  xxxil]    mutual  and  conditional  rights,  etc.  93 


CHAPTER    XXXIL 

mutual    and    conditional   rights   of  vendor   and   vendee, 
avhen  waived  or  dispensed  with. 

1.  Although  the  respective  obligations  in  a  contract  of 
sale  and  purchase  may  themselves  be  dependent  and  con- 
ditional ;  yet  the  parties  by  their  conduct  may  ivaive  the 
conditions  provided  for  their  protection  and  benefit.  Thus 
an  outstanding  mortgage  upon  lands  conveyed,  possession 
having  been  taken  by  the  grantee,  is  no  bar  to  an  action  for 
the  purchase-money,  unless  fraud  be  shown.^  So  money 
paid  under  an  agreement  for  a  lease  cannot  be  recovered 
back,  on  the  ground  that  the  lease  tendered  contained  cov- 
enants on  the  part  of  the  lessee  to  cleanse  the  drains  and 
vaults,  and  not  to  assign  or  underlet,  or  make  alterations 
without  consent  of  the  lessor ;  if  the  lessor  at  the  time  of 
tender  requested  the  lessee  to  specify  his  objections  to  the 
lease,  but  he  refused  to  do  so.'-^  So,  if  before  the  period 
fixed  for  delivery  of  a  deed  the  vendee  has  declared  that  he 
would  not  receive  it,  and  that  he  intended  to  abandon  the 
contract,  it  may  render  a  tender  of  the  deed  before  the  in- 
stitution of  a  suit  unnecessary.  Otherwise,  with  a  subse- 
quent declaration.^ 

2.  So  a  substantial  performance  by  the  vendor  in  making 
a  good  title  will  be  sufficient  to  bind  the  vendee.  (See 
Chap.  3.) 

3.  Sale  of  land,  and  a  house  to  be  erected  thereon.  Decla- 
ration, that  on  a  certain  day  the  house  was  finished,  and  the 
plaintiff  tendered  the  key  to  the  defendant,  and  offered  to 

1  Oldfielcl  ^^  Stevenson,  1  Cart.  153.  ^  Bank,  &c.  v.  Hagner,  7  Pet.  455. 

-  Sargent  v.  Adams,  3  Gray,  72. 


94  LAW  OP  VENDORS  AND  PURCHASERS.    [CH.  XXXII. 

deliver  to  him  a  good  and  sufficient  deed  with  warranty, 
duly  acknow^ledged,  conveying  the  fee  free  of  incumbrances, 
and  to  make  a  good  and  sufficient  title  ;  and  was  ready, 
able,  and  desirous  to  do  so,  but  that  the  defendant  refused 
to  accept  such  conveyance  and  title.  Plea,  that  the  plaintifi' 
had  not  a  clear  title,  but  that,  having  mortgaged  the  house 
to  A.,  he  had  conveyed  the  equity  of  redemption  to  B. 
Replication,  that  B.,  by  a  bond  of  even  date  with  the  deed 
to  him,  had  covenanted  to  reconvey  to  the  plaintiff,  and  that 
he  was  willing  and  offered  to  do  so  whenever  the  defendant 
would  accept  the  plaintiff's  deed.  Held,  that  the  declaration 
and  replication  were  sufficient.' 

4.  A  party  has  no  remedy  in  Equity  on  the  mere 
ground  of  a  failure  of  title,  if  he  has  taken  no  covenants  to 
secure  the  title,  and  there  is  no  fraud.  The  defendants,  G. 
and  W.,  the  one  by  the  purchase  of  a  mortgage,  and  the 
other  by  the  purchase  of  the  equity  of  redemption,  became 
possessed  of  the  whole  estate,  and  leased  it  to  the  plaintiff. 
G.  afterwards  assigned  the  mortgage,  with  notice  of  the 
term.  Held,  the  assignment  was  not  a  fraud  on  the  plain- 
tiff; and,  though  the  property  was  afterwards  sold,  on  a  bill 
for  foreclosure  filed  by  the  assignee,  and  the  term  thereby 
merged  in  the  inheritance ;  yet,  as  the  plaintiff  himself  be- 
came the  purchaser,  he  thereby  waived  all  right,  if  any  he 
had,  to  relief  for  the  damages  sustained  by  the  loss  of  his 
term ;  that  the  fraud,  in  such  cases,  which  will  entitle  a  party 
to  relief,  is  a  fraud  at  the  time  of  the  execution  of  the  deed 
or  lease  to  the  plaintiff,  and  not  fraud  in  a  subsequent  and 
distinct  transaction ;  and  that  the  possession  of  a  tenant  is 
notice  to  a  purchaser  of  the  reversion  of  the  actual  interest 
of  the  tenant,  and  of  the  extent  of  that  interest ;  and  the 
purchaser  is  bound  to  admit  every  claim  of  the  tenant,  which 
he  could  enforce  against  the  vendor.^ 

5.  But  the  rights  of  a  party  will  not  be  held  to  have  been 

1  Howkind  z;.  Leach,  11  Pick.  154;  -  Chestcrman  v.  Gardner,  5  Johns. 
Fleming  v.  Gilbert,  3  Johns.  530.  Ch.  29. 


CH.  XXXII.]     MUTUAL   AND    CONDITIOXAL   RIGHTS,   ETC.  95 

waived,  unless  the  circumstances  strictly  require  such  con- 
struction of  his  acts.  Thus  an  offer  by  a  purchaser,  after 
examining  a  title  which  proves  defective,  to  take  the  land  if 
he  may  pay  in  notes  of  other  parties,  not  accepted  by  the 
vendor ;  constitutes  no  waiver  of  his  right  to  refuse  a  deed.' 
So,  whether  the  purchaser  has  been  in  the  occupation  of  the 
premises  at  all,  or  whether  he  was  in  possession  up  to  the 
time  of  the  trial,  is  immaterial,  and  cannot  affect  his  right 
to  sustain  an  action,  upon  breach  of  the  contract ;  and  such 
a  breach  occurs  when  the  vendor,  upon  request,  refuses  to 
convey.^  So  a  vendee  is  not  bound  to  restore  possession 
and  give  up  the  contract,  before  he  can  object  to  the  title,  in 
an  action  for  the  purchase-money.  He  cannot  keep  both  the 
estate  and  the  price  ;  but  it  ts  the  vendor's  business,  if  he 
finds  that  he  cannot  make  such  a  title  as  the  vendee  is 
bound  to  accept,  to  refund  what  has  been  paid,  and  bring 
an  ejectment  for  the  prpperty.^  So,  although  the  taking 
possession  of  property  by  the  vendee,  before  conveyance,  is 
a  circumstance  from  which  it  is  to  be  inferred  that  he  con- 
sidered the  contract  closed,  it  would  not  deprive  him  of  the 
right  to  relinquish  the  property,  if  the  vendor  could  not  or 
did  not  make  a  title;  and  then  to  recover  back  the  purchase- 
money.*  So  a  bill  by  a  vendor  for  specific  performance,  the 
report  being  against  the  title,  was  dismissed  with  costs,  upon 
the  circumstances  ;  the  purchaser  having  taken  possession  at 
the  instance  of  the  vendor,  representing  the  title  to  be  per- 
fect.5 

6.  A  vendor  covenanted  to  convey  the  land,  which  was  to 
be  surveyed,  free  of  incumbrances,  by  the  1st  of  January. 
The  land  not  being  surveyed  in  time,  the  vendee  verbally 
declared  that  he  would  take  no  advantage,  on  account  of  the 
vendor's  not  conveying  on  the  day.  The  land  was  some 
months  afterwards  surveyed,  but  the  vendee  refused  to  ac- 
cept a  conveyance,  because  it  was  incumbered.     Held,-  the 

'  Mead  v.  Fox,  6  Ciish.  199.  *  Bank,  &c.  v.  Hagner,  1  Pet.  455. 

'■^^Fletc'lier  v.  Button,  6  Bnvb.  646.  °  Vancouver  i-.  Bliss,  11  Vcs.  458. 

^'Gans  V.  Kcnsliaw.  2  Bair.  .34. 


96  LAW    OF   VENDORS   AND    PURCHASERS.        [CII.  XXXII. 

vendee,  by  enlarging  the  time,  did  not  waive  his  right  to 
recover  a  sum  which  was  fixed  and  liquidated  by  the  agree- 
ment, as  the  amount  of  damages  to  be  paid  by  the  party 
failing  in  performance,  even  admitting  that  his  consent  to 
extend  the  time  amounted  to  an  agreement ;  for  such  subse- 
quent agreement,  by  parol,  was  void  by  the  Statute  of 
Frauds,  and  could  not  alter,  revoke,  or  modify,  the  previous 
valid  contract.^ 

7.  And  the  same  strict  rule  is  applied  in  favor  of  the  ven- 
dor. Thus  a  vendor  covenanted  to  convey  within  two  years, 
and  the  vendees  to  pay  on  receiving  the  conveyance.  The 
latter  took  immediate  possession,  pursuant  to  another  cov- 
enant on  the  part  of  the  vendor ;  and,  by  an  arrangement 
between  the  parties  and  one«A..,  part  of  the  premises  were 
conveyed  to  the  vendees  by  A.,  within  the  two  years,  A.  hav- 
ing title  ;  but  the  time  had  elapsed  when  the  conveyance  for 
the  residue  was  tendered ;  and  for,  that  reason  the  vendees 
refused  to  receive  the  conveyance.  Held,  the  contract  was 
not  rescinded,  and  the  vendees  were  liable  in  indebitatus  as- 
sumpsit for  the  consideration-money,  not  having  redelivered 
possession,  and  rescinded  in  toto? 

8.  Contract  to  sell  and  buy  land  for  a  specified  sum.  The 
title  to  a  part  failed,  from  a  cause  of  which  both  parties 
were  ignorant.  Held,  a  sufficient  reason  for  rescinding  the 
whole  contract,  but  that  the  vendee  could  not  insist  that  it 
should  be  partially  rescinded  ;  and,  if  he  declined  to  rescind, 
he  must  pay  the  whole  price.^ 

1  Hasbrouck  v.   Tappen,   15   Johns.         ^  Gale  i'.  Nixon,  6  Cow.  445. 
200.  3  Bailey  r.  James,  11  Gratt.  468.    See 

Slurlcv  V.  Shirley,  7  Blackf.  452. 


CH.    XXXIII.]  USE   AND    OCCUPATION.  97 


CHAPTER   XXXIII. 

ACTION    FOR   USE    AND    OCCUPATION,    BETWEEN   VENDOR   AND 

VENDEE. 

1.  Where  the  contract  of  sale  and  purchase  fails  to  be 
^completed,  the  question  has  often  arisen,  whether  the  vendee, 
having  taken  possession,  is  to  be  so  far  considered  the  tenant 
of  the  vendor,  as  to  be  liable  in  an  action  for  use  and  occu- 
pation. Upon  this  point  it  has  been  held,  that,  when  the 
vendee  has  thus  entered,  and  fails  to  pay  the  purchase- 
money  as  agreed,  the  vendor  may,  at  his  election,  either 
treat  him  as  a  tenant,  and  recover  for  use  and  occupation,  or 
as  a  trespasser,  and  eject  by  suit ;  and  in  neither  case  is  the 
vendee  entitled  to  notice  of  his  vendor's  election,  other  than 
that  given  by  the  commencement  of  legal  proceedings.^  So 
if,  after  the  contract  is  clearly  abandoned,  the  purchaser 
retain  possession,  he  will  be  liable  as  for  use  and  occupa- 
tion.2  So,  when  the  vendee  enters  into  possession  under  a 
parol  contract  of  purchase,  by  the  terms  of  which  he  was  to 
pay  "  $500  down,  and  $500  twelve  months  afterwards,"  and 
entirely  fails  to  pay  the  purchase-money,  and,  after  remain- 
ing in  possession  for  more  than  twelve  months,  abandons 
the  land ;  the  vendor,  if  in  no  fault,  may  recover,  in  assumpsit 
for  use  and  occupation,  the  value  of  the  land  during  the 
time  the  vendee  so  held  it.^ 

2.  Action  for  use  and  occupation.  The  defendant  sold 
land  to  A.,  and  A.  to  the  plaintiff,  who  took  possession,  but, 
pending  a  suit  for  specific  performance  by  A.  against  the 
defendant,  was  induced  by  the  defendant,  under  a  mistake 

1  Seabury  v.  Stewart,  22  Ala.  207.  ^  Smith  v.  Wooding,  20  Ala.  324. 

2  Howard  v.  Shaw,  8  M.  &  W.  118. 

VOL.  II.  9 


98  LAW   OF   VF.NDORS   AND   PURCHASERS.       [CII.  XXXIII. 

of  facts,  to  surrender  possession.  A  decree  being  rendered 
in  favor  of  A.,  and  a  conveyance  executed  accordingly  ; 
held,  the  plaintiff  might  maintain  this  action  for  the  time 
during  which  the  defendant  had  resumed  possession.^ 

3.  Verbal  contract  of  purchase.  The  vendee  entered  and 
cultivated  the  land  for  two  years,  then  quit,  and  renounced 
the  contract ;  although  the  vendor  at  the  same  time  ofiered 
to  make  a  deed  of  the  land,  which  the  purchaser  declined  to 
accept.  Held,  the  vendor  might  maintain  an  action  for  use 
and  occupation  for  two  years.'-^ 

4.  The  defendant  made  a  verbal  purchase  of  the  plaintiff's 
house,  advanced  the  purchase-money  and  took  possession.* 
Before  any  deed  was  given,  the  house  was  burned,  but  im- 
mediately afterwards  a  deed  was  tendered  and  refused,  and 
the  defendant  quit  possession  of  the  ground,  and  brought  an 
action  for  the  purchase-money,  in  which  he  recovered  judg- 
ment. The  plaintiff  then  brings  the  present  action  for  use 
and  occupation.  Held,  the  defendant  was  liable  for  the 
time  he  occupied  the  house,  but  not  after  refusing  the  deed. 
The  possession  being  taken  under  the  expectation  of  a  con- 
veyance, which  in  consequence  of  an  unforeseen  event  never 
was  or  could  be  made ;  the  defendant  in  the  mean  time  was 
a  tenant  at  will.  Had  the  deed  been  actually  made,  the 
tenancy  would  have  been  merged  in  the  executed  contract, 
which  by  its  terms  would  relate  back  to  the  time  of  taking 
possession.  But,  with  regard  to  the  subsequent  period,  by 
the  destruction  of  the  building,  the  purpose  of  the  defendant 
to  use  and  occupy  the  estate  temporarily  till  the  title  should 
be  completed,  and  then  permanently,  was  wholly  defeated, 
By  his  acts  he  showed  his  determination  to  terminate  the 
tenancy,  and  therefore  no  longer  remained  liable  as  a  tenant.^ 

5.  S.  and  Co.  agreed  in  writing  with  C,  that,  if  he  would 
build  a  shop  on  land  held  by  him  under  a  five  years'  lease 

1  Hull  V.  Vaughan,  6  Price,  157.  and  comes  to  the  result  stated  in  the 

2  Davidson  V.  Ernest,  7  Ala.  817.    In     text. 

this   case,   Collier,  C.  J.,  examines  at        ^  Gould  v.  Thompson,  4  Met.  224, 
length  the  English  and  American  cases,     228,  229. 


Ctl.    XXXIII.]  USE    AND    OCCJQl'ATION.  99 

from  the  owner  thereof,  and  would  assign  to  them  his  in- 
terest in  certain  underleases  of  parts  of  the  same  land  made 
by  him  for  the  same  term,  which  leases  had  been  assigned 
by  the  lessees  to  S.  and  Co.,  and  if  S.  and  Co.  should  be 
permitted  to  occupy  the  land,  without  paying  rent,  for  three 
years,  they  would  then  reassign  the  underleases  to  C.  A 
few  months  after  the  making  of  this  agreement,  and  after  S. 
and  Co.  had  entered  upon  the  land,  a  difference  respecting 
the  land  and  the  buildings  thereon  arose  between  the  parties, 
who  thereupon  agreed  that  such  difference  should  be  referred 
to  arbitrators,  and  that  all  papers  pertaining  to  the  land 
should  be  committed  to  them,  and  that  they  should  judge  in 
the  case,  and  report  what  in  their  judgment  was  just  and 
right  to  be  do*ie  between  the  parties,  and  fix  the  term  of 
time  for  which  S.  and  Co.  should  occupy  the  land  as  full 
compensation  for  what  was  their  rightful  due.  The  arbitra- 
tors awarded,  that  S.  and  Co.  should  occupy  the  premises, 
free  of  rent,  for  two  years  and  six  months  from  the  time  of 
their  entry.  Held,  the  agreement  in  writing  was  merged  in 
the  submission  and  award;  but  that  S.  and  Co.,  if  they 
occupied  the  premises  after  the  expiration  of  the  time  named 
in  the  award,  were  liable  to  C.  in  assumpsit  for  use  and 
occupation.^  Shaw,  C.  J.,  says :  "  The  effect  of  the  submis- 
sion and  award  was  to  supersede  all  previous  agreements, 
leases,  and  dealings  between  the  parties  respecting  the  estate 
in  question.  By  virtue  of  the  award,  the  defendant  had  the 
right  to  occupy  the  premises  for  the  term  of  two  years  and 
six  months  free  of  any  claim  of  rent  on  the  part  of  Coburn ; 
after  the  expiration  of  this  period,  the  defendants  had  no 
right  to  occupy  the  estate,  as  against  Coburn  and  his  as- 
signee, except  as  tenants.  Taking  into  view  the  previous 
relation  of  the  parties,  and  all  the  facts  as  disclosed  by  the 
testimony,  we  are  of  opinion,  that  the  defendants  did  so 
occupy  the  premises,  after  the  expiration  of  the  two  years 
and  six  months,  and  are  therefore  liable  to  pay  rent  for  the 

1  Knowles  v.  Shaplcigh,  8  Cush.  333. 


100  LAW   OF  VENDORS   AND   PURCHASERS.      [CH.  XXXIU. 

same  for  the  time  during  which  they  occupied  them  after 
that  term,  until  the  time  when  the  riijjht  of  Coburn,  under 
his  lease  from  the  proprietors  of  tlie  looks  and  canals,  to  the 
estate  in  question  expired,  and  that  an  action  for  use  and 
occupation  is  the  appropriate  remedy." ' 

6.  The  same  principle  has  received  other  applications. 
Thus  it  is  said,  that,  when  the  purchase  is  completed,  the 
purchaser's  title,  even  at  law,  so  far  relates  back  to  the  time 
fixed  for  completion,  that  he  can  maintain  use  and  occupa- 
tion against  a  person  whom  he  has  by  mistake  allowed  to 
have  the  interim  possession.^ 

7.  So  the  rule  has  been  applied  to  the  vendor  as  well  as 
the  vendee.  Thus,  in  Hull  v.  Vaughan,^  (see  s.  8,  n.)  the 
defendant  was  a  vendor  of  land,  refused  to  execute  his  con- 
tract, obtained  possession  by  misrepresentation,  and  retained 
it  when  the  plaintiff  was  entitled  to  it.  Mr.  Baron  Graham 
says :  "  It  is  not  necessary  in  this  species  of  action  that  the 
proper  relation  of  landlord  and  tenant  should  be  distinctly 
made  out  between  the  parties,  because  the  action  is  calcu- 
lated in  form  to  meet  cases  where  the  parties  do  not  bear 
those  characters,  if  there  be  in  point  of  fact  an  ownership  on 
one  hand,  and  an  occupation  on  the  other,  and  it  should  be 
liberally  applied  where  it  may  be  found  to  be  a  party's  only 
remedy.  My  difficulty  has  been  to  reconcile  that  rule  with 
the  rule  of  Kirtland  v.  Pounsett,  where  the  Chief  Justice  has 
certainly  expressed  himself  very  strongly  against  the  impli- 
cation of  an  assumpsit,  where  it  was  not  in  the  contempla- 
tion of  the  parties.  Although  in  raising  an  implied  assump- 
sit, however,  we  may  or  may  not  be  doing  what  was  not  in 
the  contemplation  of  the  parties  at  the  moment,  that  should 
not  be  the  only  consideration  with  us  in  determining  whether 
this  species  of  action  can  be  maintained  or  not." 

8.  This,  however,  has  not  been  the  uniform  doctrine  of 
the  decided  cases,  either  English  or  American.     Thus,  it  has 


'  Knowles    v.    Shajileigli,    S    Cush.  ~  Dart,  120. 

336-7.  3  6  i:irice,  157. 


OH.    XXXIII.]  USE   AND    OCCUPATION.  101 

been  held,  that,  where  a  man  agrees  to  purchase,  on  an 
assurance  that  the  vendor  has  a  long  term,  and,  on  the  faith 
of  such  assurance,  at  considerable  expense,  enters  into  pos- 
session, he  shall  not,  on  refusing  to  complete  his  purchase, 
on  account  of  the  seller's  having  a  shorter  term,  be  charged 
in  an  action  for  use  and  occupation.^  So  in  a  leading  and 
often  cited  case  it  was  determined,  that,  if  a  purchaser  takes 
possession,  and  the  sale,  on  account  of  a  defect  in  the  ven- 
dor's title,  fails  to  be  completed ;  the  vendor  cannot  recover 
rent  upon  an  implied  contract  for  use  and  occupation.^ 
Mansfield,  C.  J.,  says  :  "  If  no  money  bad  been  paid,  perhaps 
it  might  be  a  different  question  ;  but  if  a  man  pays  part  of 
his  money,  and  is  so  unwise  as  to  tender  possession  without 
a  title,  is  it  not  just  that  the  one  party  should  take  back  his 
money,  and  the  other  take  back  his  house  ?  It  is  impossible 
to  make  the  rules  of  law  depend  on  the  balance  of  loss  or 
gain  in  each  transaction.  The  possession  of  a  house  is 
always  beneficial ;  for  it  protects  the  occupier  from  the  in- 
clemency of  the  weather.  A  contract  cannot  arise  by  impli- 
cation of  law  under  circumstances  the  occurrence  of  which 
neither  of  the  parties  ever  had  in  their  contemplation."  ^ 

1  Hearn  v.  Toralin,  Peake's  Ca.  192.  ^  ibi^.  196-7. 

~  Kirtlaud  y.Pounsett,2  Taunt.  145.* 


*  In  the  case  of  Gould  v.  Thompson,  4  Met.  227-8,  Shaw,  C,  J.,  remarks  as  follows 
upon  this  case,  in  connection  with  a  subsequent  one,  by  which  he  considers  it  as  to  some 
extent  overruled :  "  In  Kirtland  v.  Pounsett,  2  Taunt.  145,  it  was  argued  by  counsel, 
that  there  was  no  demise,  express  or  implied,  arising  from  such  use  of  premises  agreed 
to  be  sold,  and  of  which  the  vendee  takes  possession  under  permission  of  the  vendor. 
The  cause,  however,  was  not  decided  on  that  ground,  but  on  the  ground,  that  the  use 
of  the  purchase-money,  which  had  been  advanced,  was  intended  and  must  be  pre- 
sumed to  be  a  compensation  for  the  use  and  enjoyment  of  the  premises.  But  in  the 
subsequent  case  of  Hull  v.  Vaughan,  6  Price,  157,  where  the  foregoing  case  was  re- 
viewed, it  was  decided,  on  great  consideration,  overruling  the  direction  of  the  Judge 
at  Nisi  Prius,  that  where  the  relation  of  landlord  subsisted  by  any  contract,  express 
or  implied  by  law,  the  action  of  assumpsit  for  use  and  occupation  would  lie;  and  that 
such  contract  would  be  implied  from  the  actual  occupation  and  enjoyment  of  the 
premises,  by  permission  of  the  owner,  or  other  person  having  the  power  of  disposal, 
when  such  use  and  occupation  had  been  beneficial."  As  to  the  distinction  between 
actual  and  constructive  occupation,  see  Towne  v.  D'Heinrick,  24  Eng.  L.  &  Eq.  235. 
That  one  may  be  liable  for  use,  &c.,  though  not  technically  for  rent,  see  Smith  v. 
Eldridge,  26  lb.  285. 

9* 


• 


102  LAW    OF    VENDORS   AND    PURCHASERS.       [CH.  XXXIII. 

9.  A.  sold  land  to  B.,  and  gave  a  bond  to  make  title.  B. 
filed  a  bill  in  equity,  to  compel  a  specific  execution  or  a 
rescission  of  the  contract.  The  contract  was  rescinded.  A. 
sued  B.  in  assumpsit  for  use  and  occupation.  Held,  that  he 
could  not  maintain  the  action,  but  that  he  should  have  set 
off"  his  claim  for  rents  and  profits  in  the  suit  in  equity.^ 

10.  Agreement  for  the  sale  and  purchase  of  land.  The 
defendant,  the  purchaser,  took  possession,  and  afterwards 
refused  to  complete  his  purchase ;  whereupon  the  plaintiff 
brings  this  action  for  use  and  occupation.  In  considering 
the  question  whether  the  action  was  maintainable,  the  Court 
(in  New  York)  said,  that  the  statute  of  that  State  was  sub- 
stantially the  same  as  the  English  act  of  Geo.  IL,  and  applies 
only  to  the  case  of  a  demise,  and  where  there  exists  the 
relation  of  landlord  and  tenant,  founded  on  some  agreerrient 
creating  that  relation.  The  defendant  entered  under  a  color 
of  title,  which  might  have  been  enforced  in  equity  ;  by  refus- 
ing to  perform  his  contract,  he  became  a  trespasser,  liable  to 
be  turned  out  as  such,  and  responsible  in  that  character  for 
the  mesne  profits,  but  not  as  a  tenant.''^ 

11.  Bond  dated  May  30,  1835,  conditioned,  in  considera- 
tion of  $500  and  three  notes  for  $500,  to  convey  a  hi)use 
and  lot  when  all  the  conditions  of  the  bond  should  be  ful- 
filled. At  the  foot  of  the  bond  was  a  receipt  for  $500.  In 
1841,  the  obligor  signed  a  certificate  that  he  had  taken  back 
the  property  for  the  same  sum  which  the  obligee  "  agreed  for 
and  purchased  of  him,"  and  "  feel  myself  bound  for  the  same 
amount."  The  obligee  took  possession  in  1835,  and  re- 
mained in  possession  till  1840  ;  the  rent  being  worth  $90 
per  annum.  This  action  was  brought  upon  the  agreement 
of  1841,  to  recover  the  $500.  Held,  the  defendant  was 
bound  to  return  the  amount  paid  him  by  the  plaintiff"  under 
the  contract  of  that  year ;  that  the  value  of  the  use  and 
occupation  was  not  to  be  deducted ;  and  that  the  contract  of 
1841  was  a  repurchase.^ 

1  Rogers  v.  Wi-rgs,  12  B.  Mon.  504.   "      '<^  Benson  r.  Boteler,  2  Gill,  74. 

2  Sinitti  V.  Stewart,  6  Johns.  46. 


en.  XXXIII.]  USE   AND    OCCUPATION.  103 

12.  Action  for  use  and  occupation.  In  May,  1838,  the 
defendant  contracted  verbally  with  the  plaintiff  for  the  pur- 
chase of  a  farm  for  $1,200;  $200  or  $300  to  be  paid  when 
he  should  take  possession ;  $500  in  the  following  summer ; 
and  the  balance  in  two  years.  The  defendant  entered  and 
paid  $200,  for  which  the  plaintiff  gave  a  receipt,  as  in  part 
payment.  The  defendant  took  the  crops  for  1838,  but,  fail- 
ing to  make  any  further  payment,  received  notice  to  quit, 
and  removed  in  December.  The  plaintiff  then  brings  this 
action,  and  the  defendant  claims  the  $200  by  way  of  set-off 
Held,  the  set-off  could  not  be  allowed,  the  defendant  not 
having  paid  or  tendered  the  instalment  when  it  fell  due;  but, 
also,  that  the  plaintiff  could  not  recover  without  paying 
back  the  sum  received  under  the  contract.^ 

13.  In  conformity  with  the  cases  last  cited,  it  is  said  to 
have  been  recently  determined,  that  a  purchaser  who  has 
been  let  into  possession,  pending  discussions  as  to  title,  can- 
not, if  the  contract  go  off  through  defects  in  title,  be  sued 
for  use  and  occupation,  even  though  the  occupation  may 
have  been  a  beneficial  one.^ 

14.  The  defendant  paid  the  plaintiff's  intestate  $100  as 
the  price  of  land  sold,  and  the  intestate  gave  the  defendant 
a  negotiable  note  for  the  money,  under  which  was  written 
the  following  memorandum,  signed  by  the  intestate  :  "  N.  B. 
— This  note  is  to  be  given  up  when  I  give  him  a  deed  of  the 
land  which  I  have  engaged  to  give  him,"  &c.  The  defend- 
ant occupied  the  land  nine  years  till  the  intestate's  death, 
but  the  latter  made  no  conveyance  of  the  land,  and  the  de- 
fendant retained  the  note.  The  intestate  dying  insolvent, 
his  administrators  bring  this  action  against  the  defendant  for 
use  and  occupation  during  the  nine  years.  Held,  the  action 
would  not  lie.  Parker,  C.  J.,  says  :  "  This  case,  if  it  must 
be  determined  for  the  plaintiff,  would  produce  great  injustice. 
There  was  certainly  no  expectation  between  the  intestate 

1  Ayer  y.  Hawkes,  11  N.  H.  148.  -  T>avt,  119;  Winterbottom   v.  Ing- 

ham, 7  Q.  B.  Gil. 


104  LAW    OF    VENDORS    AND    rURCIIASEllS.       [CII.  XXXIII. 

and  the  defendant,  that  tlie  defendant  should  pay  rent  for 
the  land  which  he  had  agreed  to  purchase  and  liad  paid  for. 
Indeed,  we  do  not  see  why  the  note,  with  the  memorandum, 
is  not  a  sufficient  agreement  whereby  in  equity  to  compel  a 
conveyance.  The  interest  of  the  money  received  by  the 
intestate  was  just  equivalent  to  the  sum  charged  for  rent; 
the  intestate  therefore  received  his  rent  in  his  Hfetime.  It  is 
true  he  gave  his  promissory  note  for  the  money  he  received, 
payable  on  demand  and  on  interest,  but  it  is  manifest  this 
was  to  be  a  mere  memorandum  between  the  parties.  On 
the  note  itself  it  appears  that  it  might  be  discharged  at  any 
time,  by  the  delivery  of  the  deed  which  had  been  agreed  for ; 
and  though  the  note  is  negotiable  in  form,  its  negotiability 
to  the  prejudice  of  the  intestate  was  destroyed  by  the  writ- 
ten memorandum  on  it,  which,  though  signed  by  the  intestate 
alone,  was  binding  on  the  defendant,  he  having  received  it 
in  that  form,  and  every  assignee  would  have  notice  of  the 
subsisting  right  to  defeat  the  note."  ^ 

1  Little  V.  Pearson,  7  Tick.  301,  303. 


CH.  XXXIV.]  DAMAGES.  105 


CHAPTER   XXXIV. 

MEASURE    OF   DAMAGES    TO    BE   RECOVERED    BY   VENDOR    AND 
VENDEE. 

1.  An  important  subject  of  inquiry,  in  connection  with 
the  respective  remedies  of  the  vendor  and  vendee  of  real 
estate,  is  the  amount  of  damages  to  be  recovered  by  each  for 
a  breach  of  the  contract  by  the  other.  As  has  been  seen, 
(Chap.  25,)  the  most  effectual  redress  for  the  purchaser,  and 
one  specially  favored  by  the  law  in  reference  to  real  estate, 
is  specific  performance  of  the  contract,  effected  through  a  bill 
in  equity.  The  same  remedy  may  also  be  resorted  to  by  the 
vendor ;  but,  of  course,  differs  less  in  this  case  than  in  the 
other  from  an  action  at  law  for  damages;  because  pecuniary 
compensation,  or  the  price  or  value  of  the  property  sold,  is 
substantially  the  result  alike  of  both  these  proceedings.  It 
will  be  seen,  that  the  measure  of  damages  which  may  be 
recovered  at  law,  either  by  vendor  or  vendee,  is  by  no  means 
well  established.  The  great  point  of  difference  has  been, 
whether  the  standard  should  be  the  price  agreed  upon,  or  the 
actual  injury  sustained  by  the  plaintiff,  in  consequence  of 
the  defendant's  violation  of  his  contract.  The  grounds  of 
these  respective  opinions  will  appear,  in  connection  with  a 
citation  of  the  leading  English  and  American  cases  upon 
the  subject. 

2.  With  regard  to  the  claim  of  the  vendor  for  damages,  it 
has  been  held,  that,  where  the  purchaser  has  been  let  into 
possession,  but  does  not  complete  the  purchase,  and  refuses 
to  pay  the  purchase-money,  and  no  conveyance  is  executed, 
the  vendor  cannot  recover  from  him  the  whole  amount  of 
the  purchase-money,  but   only  the   damages    actually   sus- 


106  LAW    OF   VENDORS   AND    PURCHASERS.        [oiI.  XXXIV. 

taincd  by  his  l)reach  of  contract,^  Thus,  in  case  of  a  sale 
at  auction,  the  difference  between  the  price  at  which  the 
land  is  first  bid  off,  and  the  price  at  which  it  sold,  at  a  sub- 
sequent and  second  sale,  aifords  a  good  criterion  of  damages 
as  evidence^  although  not  binding  upon  the  jury.  But  the 
second  sale  must  have  been  conducted  with  fairness,  and  no 
means  resorted  to,  to  impair  the  value  of  the  estate  in  public 
estimation.  And,  where  the  declaration  does  not  aver,  as 
part  of  the  contract  of  sale,  a  condition,  that  the  lands  shall 
be  resold  in  case  of  a  failure  on  the  part  of  the  vendee  to 
comply  with  the  terms  of  sale,  but  simply  alleges  the  differ- 
ence between  the  two  sales,  and,  as  a  consequence  of  a 
breach  of  contract,  the  liability  of  the  defendant  to  pay  the 
amount  of  that  difference  ;  and  is  framed  on  the  supposition 
that  the  difference  between  the  two  sales  is  recoverable  as  on 
a  contract,  and  not  as  unliquidated  damages  ;  it  is  bad  on 
demurrer.2 

3.  On  the  other  hand  it  has  been  held,  that,  where  a  party 
has  bound  himself  to  receive  a  deed  of  land,  and  to  pay 
therefor  a  stipulated  sum,  and  the  deed  has  been  tendered 
and  refused,  but  has  been  placed  in  a  position  to  await  his 
call,  the  damages  to  be  recovered,  in  a  suit  upon  the  obliga- 
tion, are  the  contract  price  and  interest.  Tenney,  J.,  says  : 
"  When  a  party,  who  has  contracted  in  writing  for  the  pur- 
chase of  land,  has  done  every  thing  on  his  part  to  entitle 
him  to  a  conveyance,  on  a  refusal  of  the  other  party,  he  can 
demand  successfully  specific  performance.  It  is  certainly 
reasonable,  that  the  same  right  should  be  held  by  the  one, 
who  is  to  make  the  conveyance,  and  receive  the  considera- 
tion. In  the  latter  case,  when  the  deed  has  been  tendered 
and  refused,  and  now  awaits  the  call  of  those  who  cov- 
enanted to  accept  it,  it  is  just  that  the  latter  should  be  com- 
pelled in  a  suit  at  law,  when  damages  alone  can  be  awarded, 
to  pay  the  price,  which  he  had  contracted  to  give,  as  the 
damages  sustained  by  him  who  had  in  good  faith  fulfilled 

'  Laird  v.  Pim,  7  Mees.  &  W.  474.  '^  Adams  v.  M'Millan,  7  Port.  73. 


CH.  XXXIV.]  DAMAGES.  107 

the  contract  on  his  part,  together  with  interest  thereon."  ^  So, 
in  the  case  of  Ahia  v.  Plummer,^  the  defendant  bid  off  a  farm 
at  auction.  A  memorandum  thereof  was  made  by  the  auc- 
tioneer, and  a  deed  properly  executed  was  tendered  to  the 
purchaser,  which  he  refused  to  receive.  The  damages 
awarded  were  the  purchase-money  and  interest.^  {a) 

4.  The  question,  however,  as  to  the  measure  and  amount 
of  damages,  has  for  the  most  part  arisen  in  actions  brought 
by  vendee  against  vendor.  It  will  be  seen,  that  the  point 
has  been  variously  determined  in  different  cases,  as  affected 
by  the  analogy  of  covenants  for  title  in  executed  convey- 
ances, {b)   or  of   contracts    for  the    sale  of   personal   prop- 

1  Oixtman  v.  Walker,  33  Maine,  67,  ^  4  Greenl.  258 ;  ace.  Robinson  v. 
73,  74.  Heard,  15  Maine,  296. 


(a)  If  a  grantee  of  land,  who  has  agi'eed  with  his  grantor,  in  part  of  the 
consideration  of  the  conveyance,  to  assume  and  pay  the  taxes  which  might 
thereafter  be  assessed  on  the  land  as  of  the  1st  day  of  May  previous,  refuses 
to  pay  the  taxes  when  assessed,  and  brings  an  action  against  his  grantor  on 
the  covenant  against  incumbrances  in  the  deed,  the  grantor  may  sue  the 
grantee  in  assumpsit  immediately  for  the  breach  of  his  agreement  to  pay  the 
taxes,  and,  on  paying  the  taxes  before  trial,  may  recover  as  part  of  his 
damages  the  amount  so  paid.     Preble  v.  Baldwin,  6  Cush.  549. 

The  question  as  to  the  amount  of  damages  to  be  recovered  has  also  been 
raised  as  between  the  vendor  and  a  party  employed*  by  him  to  effect  a  sale 
of  the  estate. 

A.  and  B.,  land  agents,  were  severally  employed  to  sell  an  estate  for  C. 
D.  called  on  A.  to  inquire  after  another  estate,  and  was  told  that  it  was  not 
in  the  market,  but  that  C.'s  estate  was  to  be  sold.  D.  took  from  A.  a  par- 
ticular of  the  estate,  and  afterwards  meeting  B.,  the  other  agent,  negotiated 
with  liim  the  terms  of  the  purchase,  which  was  afterwards  completed.  A. 
brought  an  action  against  C.  for  commission  on  the  sale,  which  was  proved  to 
be,  according  to  usage,  £2  per  cent,  and  payable  to  the  agent  who  found  the 
purchaser.  Held,  1st,  that  the  question  for  the  jury  was,  whether  they 
thought  that  in  fact  A.  had  found  the  purchaser;  and  2dly,  that,  if  they 
thought  he  bad,  and  gave  their  verdict  for  him,  they  were  not  bound  to  give 
him  the  full  amount  of  the  commission,  though  the  fact  of  that  commission 
being  usually  paid  was  some  evidence  to  guide  them  in  their  decision. 
Murray  v.  Currie,  7  Carr.  &  P.  584. 

(h)  The  following  is  a  concise  statement  of  the  law  upon  this  subject : — 


108  LAW    OF   VENDORS   AND   PURCHASERS.       [CII.  XXXIV. 

erty ;  (a)  by  the  fair  or  fraudulent  intent  of  the  party  ;  by 
the  possession  of  the  vendee  under  the  contract;  and  by  the 


"  The  amount  of  damages  to  be  recovered  depends  upon  the  covenant 
which  is  broken,  and  the  manner  in  which  a  breach  takes  place.  It  seems 
to  be  the  universal  rule,  subject  to  be  varied  only  by  special  circumstances, 
that,  upon  the  covenants  of  seizin,  &c.,  the  measure  of  damages  is  the  con- 
sideration paid,  with  interest.  No  estate  having  ever  passed  to  the  grantee, 
the  value  of  the  land  does  not  come  at  all  in  question.  As  to  the  amount 
of  damages  upon  the  covenants  of  warranty,  &c.,  the  rule  is  variously  set- 
tled in  diflfbrent  States.  In  general,  it  is  the  consideration  paid,  with  in- 
terest. But  in  Massachusetts,  Connecticut,  and  Maine,  and  formerly  in 
South  Carolina  (though  the  rule  is  now  changed)  the  value  of  the  land  at 
the  time  of  eviction,  with  interest.  In  Pennsylvania,  the  price  paid,  with 
interest  from  the  time  of  ceasing  to  receive  the  profits.  In  Ohio,  the  rule 
of  damages  on  a  covenant  of  warranty,  is  the  actual  loss  sustained,  to  be 
ascei'taincd  under  the  occupying  claimant  law."  2  Hill,  on  R.  P.  (3d  ed.) 
40G-7  and  n.  See  Blossom  v.  Knox,  3  Chandl.  295 ;  Rich  v.  Johnson,  1 
Chandl.  19  ;  Griffm  v.  Reynolds,  17  How.  609. 

(«)  It  is  said,  "  In  all  cases  of  executory  contracts,  the  compensation  in 
case  of  failure,  when  the  property  sold  has  in  the  meantime  increased  in 
value,  should  be  the  same  as  in  case  of  an  executed  contract  with  warranty, 
and  an  eviction,  for  the  real  loss  to  the  purchaser  is  the  same."  Per  Green, 
J.,  Stout  V.  Jackson,  2  Rand.  132. 

So,  in  a  subsequent'  case  in  the  same  Court,  It  was  remarked  :  "  In  all 
executory  contracts  for  the  delivery  of  personal  property  at  a  future  day, 
the  established  standard  of  damages  is  the  value  of  the  property  at  the  time 
and  place  when  and  where  It  ought  to  be  delivered.  In  all  executory  con- 
tracts for  the  conveyance  of  land  at  a  future  time,  the  established  measure 
of  damages  Is  the  purchase-money."  Per  Cabell,  J.,  Threlkeld  v.  Fitzhugh, 
2  Leigh,  451. 

It  seems  to  be  well  settled,  that  the  measure  of  damages,  to  be  recovered 
by  a  purchaser  of  personal  property,  for  a  failure  to  deliver  the  thing  sold 
at  the  time  appointed,  Is  the  difference  between  the  contract  price,  and  the 
market  price  at  that  time,  or  that  for  which  the  vendee  had  sold ;  but  the 
latter  cannot  recover,  as  special  damage,  the  loss  of  anticipated  profits  to  be 
made  by  his  vendees.  Peterson  u.  Ayre,  24  Eng.  L.  &  Eq.  382  ;  McKnight 
V.  Dunlop,  1  Seld.  637. 

And  the  same  rule  has  been  applied  to  an  exchange.  Thus,  In  a  suit  for 
breach  of  a  contract  to  pay  a  certain  quantity  of  flour  for  a  certain  quantity 
of  wheat,  the  value  of  the  flour  Is  the  measure  of  damages.  Lucas  v.  Hea- 
ton,  1  Cart.  264. 


CH.  XXXIV.]  DAMAGES.  109 

considerations  of  public  policy  which  demand  a  rigid  fulfil- 
ment of  contracts  on  the  one  hand,  and  that  the  party 
injured  should  be  placed  in  as  favorable  condition  as  if  the 
contract  had  been  fulfilled,  on  the  other. 

5.  The  prevailing  doctrine  upon  this  subject  is,  that,  on  a 
covenant  to  convey  real  estate,  as  on  a  covenant  of  seizin 
in  a  conveyance,  the  measure  of  damages,  in  the  absence  of 
•fraud,  is  the  purchase-money  and  interest;  not  the  preseni 
value  of  the  land.^  Thus,  where  the  vendor  has  been  un- 
able to  perform  in  consequence  of  a  defect  in  his  title,  the 
rule  of  damages  is  the  same,  as  in  an  action  on  the  cov- 
enants as  to  title  in  a  deed ;  and  the  plaintiff  can  only 
recover  for  such  part  of  the  consideration  as  he  may  have 
paid,  with  interest ;  not  the  expenses  of  taking  possession, 
or  of  commencing  the  cultivation  of  the  land,  though  he 
entered  pursuant  to  the  terms  of  the  contract.^  Bronson, 
C.  J.,  remarks,  that  the  measure  of  damages,  in   an  action 

'  Blackwell  r.  Lawrence  Co.  2  Blackf.  3   Bibb,  317;  Cox  v.   Strode,  2  Bibb, 

143;  Sheets  v.  Andrews,  1  lb.  274  ;   Al-  275. 

len  y.  Anderson,  2  Bibb,  415  ;  Dunnica        ^  pgters    v.  McKeon,  4    Denio    546 

V.  Sharp,  7  Mis.  71  ;  Kelly  v.  Bradford,  550. 

The  following  remarks,  In  a  late  case  in  MassacIiuSfetts,  refer  to  the  ques- 
tion not  unfrequently  raised,  how  far  the  vendee  may  be  allowed  to  include 
remote  and  contingent  profits^  as  going  to  make  up  the  value  of  the  property 
sold  :  "  The  rule  has  not  been  uniform  or  very  clearly  settled  as  to  the  right 
of  a  party  to  claim  a  loss  of  profits  as  a  part  of  the  damages  for  breach  of  a 
special  contract.  But  we  think  there  is  a  distinction  by  which  all  questions 
of  this  sort  can  be  easily  tested.  If  the  profits  are  such  as  would  have 
accrued  and  grown  out  of  the  contract  itself,  as  the  direct  and  immediate 
results  of  its  fulfilment,  then,  they  would  form  a  just  and  proper  item  of 
damages  to  be  recovei-ed  against  the  delinquent  party  upon  a  breach  of  the 
agreement.  These  are  p^rt  and  parcel  of  the  contract  itself,  and  must  have 
been  in  the  contemplation  of  the  parties  when  the  agreement  was  entered 
into.  But  if  they  are  such  as  would  have  been  realized  by  the  party  from 
other  independent  and  collateral  undertakings,  although  entered  into  in  con- 
sequence and  on  the  faith  of  the  principal  contract,  then  they  are  too  uncer- 
tain and  remote  to  be  taken  into  consideration  as  a  part  of  the  damages 
occasioned  by  the  breach  of  the  contract  in  suit."  Per  Bigelow,  J.,  Fox  v. 
Harding,  7  Cush.  522. 

VOL.  II.  10 


110  LAW   OF  VENDORS   AND   PURCHASERS.      [CH.  XXXIV. 

upon  the  covenants  of  seizin  and  for  quiet  enjoyment,  is  the 
consideration  paid,  with  interest  for  such  time  as  the  vendee 
may  be  compelled  to  pay  for  mesne  profits,  and  the  costs  of 
the  suit  by  which  he  was  evicted.  He  can  recover  nothing 
for  increased  value  or  improvements.^  And  the  measure 
of  damages  is  the  same  in  case  of  a  mere  contract  to  sell, 
which  fails  solely  for  want  of  title,  without  fraud.  In  such 
case,  the  vendee  can  recover  nothing  for  the  loss  of  a  good  • 
bargain.  Nor  for  his  expenses  in  removing  to  the  land,  or 
improvements.  More  especially  if  he  has  not  acted  with 
sufficient  caution.  The  learned  Judge  proceeds  to  remark, 
upon  cases  apparently  conflicting,  that  in  Hopkins  v.  Graze- 
brook  ^  (see  p.  115)  the  defendant  sold,  having  no  color  of 
title.  In  Driggs  v.  Dwight,-^  he  perversely  refused  to  perform 
his  contract,  when  there  was  no  obstacle  in  the  way.  So  in 
Nurse  v.  Barns.* 

6.  So  it  has  been  held,  that,  where  the  covenantee  has 
been  put  in  possession  and  never  evicted,  and  the  breach 
consists  in  the  failure  of  the  covenantor  to  convey,  and  in 
his  not  having  the  legal  title  in  himself,  and  no  fraud  is 
proved  or  imputed,  the  covenantee  is  not  entitled  to  more 
damages,  at  the  utmost,  than  the  purchase-money  he  has 
actually  paid,  with  interest  for  the  time  for  which  he  may 
be  accountable  for  the  profits  to  the  true  owner.  Parker,  J., 
says  :  "  The  vendee's  loss,  in  case  of  failure,  is  the  purchase - 
m.oney  ;  the  profits,  as  long  as  he  receives  them,  standing  in 
lieu  of  interest,  unless  so  far  as  they  are  recovered.  For  this 
loss  he  ought  to  be  compensated,  if  the  land  falls  in  value ; 
and  no  more  than  compensated,  if  it  rises.  Such  a  rule 
offers  no  temptation  to  the  vendor  to  violate  his  contract ; 
because,  if  he  has  a  good  title,  the  vende'e  can  claim  specific 
performance  in  a  Court  of  Chancery."^ 

7.  So  it  is  held,  that  the  measure  of  damages  for  a  failure 
to  convey  is  the  consideration  with  interest,  not  in  all  cases 

1  St<|ts  V.  Ten  Eyck,  3  Caines,  111  ;  2  g  g.  &  c.  31. 
Pitcher  w.  Livingston,  4  Johns.  1  ;  Kin-  ^  17  Wend.  71. 
ney  v.  Watts,   14  Wend.  38 ;  Kelly  v.        *  T.  Ray.  77. 

Dutch  Chmth,  2  Hill,  115.  ^  Thompson  v.  Guthrie,  9  Leigh,  101, 

107. 


CH.  XXXIV.]  DAMAGES.  Ill 

from  the  date  of  the  covenant,  but  from  the  time  when  the 
money  was  payable  witliout  interest,  or  began  to  bear  in- 
terest ;  and,  if  the  covenant  does  not  show  that,  it  may  be 
shown  by  proof  aliunde} 

8.  So,  in  an  action  brought  by  the  vendee  for  a  breach  of 
the  covenant  to  convey,  the  purchase-money  having  been 
fully  paid  before  or  at  the  execution  of  the  covenant,  the 
plaintiff  is  entitled  to  recover  the  amount  paid  with  interest, 
for  a  period  not  to  exceed  six  years.^  [a) 

9.  So,  in  a  leading  case  upon  this  subject,^  often  referred 
to  and  commented  on  in  subsequent  decisions,  it  was  held, 
that,  where  the  title  proves  (without  collusion)  defective,  the 
purchaser  is  entitled  to  no  satisfaction  for  the  loss  of  his 
bargain.  In  that  case,  the  vendor,  the  defendant,  was  the 
owner  of  the  estate,  but,  the  title  being  objectionable,  he 
offered  the  vendee,  the  plaintiff,  his  election,  either  to  take  it 
as  it  was,  or  receive  back  his  deposit  with  interest  and  costs. 
And  it  was  held,  this  offer  being  refused,  that  the  plaintiff 
could  recover  no  more  than  that  amount. 

10.  There  is  a  class  of  cases,  however,  in  which  it  has 
been  held,  that  the  measure  of  damages  in  an  action  of  this 
description  is  not  the  price  paid,  or  the  loss  suffered  by  the 
plaintiff,   upon   the    supposition    that    this   price   precisely 

'  Herndon  v.  Venable,  7  Dana,  371.  ^  Flureau  v.  Thornhill,  2  Black.  1078. 

-  Fletcher  v.  Button,  6  Barb.  646. 


(rt)  In  this  case  it  was  suggested,  that  perhaps  a  more  stringent  rule  might 
be  adopted,  and  the  plaintifi'  be  allowed  to  recover  the  value  of  the  land  at 
the  time  of  the  refusal  to  convey,  with  interest  from  that  time.  Fletcher  v. 
Button,  6  Barb.  647. 

Allen,  J.,  in  the  course  of  an  elaborate  exammation  of  the  decided  cases, 
remarks :  "  Although  it  has  been  often  held,  that  the  vendee  cannot  recover 
the  purchase-money  as  such,  while  he  remains  in  possession  and  fails  to 
restore  the  vendor  to  his  situation  before  the  sale,  the  distinction  has  been 
made,  that  an  action  will  lie  to  recover  damages  for  breach  of  the  covenant 
to  convey,  although  the  plaintiff  is  still  in  possession.  Nor  will  he  be  con- 
fined to  mere  nominal  damages,  because  the  contract  is  one  for  the  title  to, 
not  mere  possession  of,  the  premises."     - 


112  LAW    OF    VENDORS    AND    I'UllCHASERS.      [oil.  XXXIV. 

equalled  the  value  of  the  land;  but  the  injury  sustained  by 
him  in  consequenee  of  the  defendant's  breach  of  contract;  or 
the  value  of  the  land  without  reference  to  the  price,  where 
the  latter  has  been  paid ;  and,  if  not  paid,  tlie  excess  of  such 
value  over  the  price.  As  has  been  already  stated,  this  is  the 
rule  uniformly  recognized,  where  the  vendor  has  not  acted 
in  good  faith ;  but  it  has  .by  no  means  been  always  restricted 
by  such  a  limitation.  Thus  it  is  said,  with  much  force,  in 
reference  to  the  rule  which  makes  the  price  to  be  the  measure 
of  damages  :  "  Such  a  rule  would  tempt  the  vendor,  in  any 
case  where  the  property  increased  in  value,  to  violate  his 
contract.  The  proper  criterion  is,  the  value  of  the  land  at 
the  time  when  the  title  should  have  been  made."  And  this 
view  is  said  to  be  fortified  by  the  consideration,  that  the 
v6ndee  may  demand  specific  performance,  if  the  vendor  has 
a  title  ;  or,  if  not,  have  a  suitable  allowance  in  Chancery  for 
his  improvements.^  So  it  is  said  by  the  Supreme  Court  of 
the  United  States:  "The  rule  is  settled  in  this  Court,  that 
in  an  action  by  the  vendee  for  a  breach  of  contract  on  the 
part  of  the  vendor,  for  not  delivering  the  article,  the  measure 
of  damages  is  its  price  at  the  time  of  the  breach.  The  price 
'being  settled  by  the  contract,  which  is  generally  the  case, 
makes  no  difference,  nor  ought  it  to  make  any ;  otherwise 
the  vendor,  if  the  article  have  risen  in  value,  would  always 
have  it  in  his  power  to  discharge  himself  from  his  contract, 
and  put  the  enhanced  value  in  his  own  pocket.  Nor  can  it 
make  any  difference  in  principle,  whether  the  contract  be  for 
the  sale  of  real  or  personal  property,  if  the  lands,  as  is  the 
case  here,  have  not  been  improved  or  built  on.  In  both 
cases,  the  vendee  is  entitled  to  have  the  thing  agreed  for,  at 
the  contract  price,  and  to  sell  it  himself  at  its  increased 
value.  If  it  be  withheld,  the  vendor  ought  to  make  good  to 
him  the  difference.  This  is  not  an  action  for  eviction,  nor  is 
the  Court  now  prescribing  the  proper  rule  of  damages  in 
such  a  case."  2     So  it  is  laid  down,  in  general  terms,  that, 

'  Bryant  V.  Hanibrick,  9  Geo.  134.  ^  Per  Livingston,  J.,  Hopkins  u.  Lee, 

6  Wheat.  118. 


CH.  XXXIV.]  DAMAGES.  113 

in  an  action  for  breach  of  a  covenant  or  agreement  to  con- 
vey real  estate  or  a  bond  for  title,  the  measure  of  damages 
is  the  value  of  the  estate  at  the  time  of  the  breach  ;  but  that 
interest,  as  such,  is  not  recoverable.^ 

11.  As  has  been  already  stated,  the  rule,  in  question  has 
been  sometimes  restricted  to  cases  of  fraud  on  the  part  of 
the  vendor.  That  fraud,  however,  may  be  merely  construc- 
tive, and,  as  will  be  seen,  has  often  been  inferred  from  slight 
circumstances.  The  general  rule,  as  thus  qualified,  has  been 
laid  down  in  a  late  case,^  as  follows :  Where  the  vendor, 
without  fraud  on  his  part,  is  incompetent  to  make  out  a 
title,  the  vendee  is  not  entitled  to  damages  for  the  loss  of 
his  bargain,  beyond  the  money  paid,  with  interest  and  ex- 
penses, although  the  completion  of  the  bargain  might  have 
been  profitable  to  him.  But  where  the  vendor  is  guilty  of 
collusion,  tort,  artifice,  and  fraud,  to  escape  from  a  bad  bar- 
gain, the  vendee  is  entitled,  not  only  to  compensatory  dam- 
ages, but  to  damages  arising  from  the  loss  of  the  bargain, 
or  the  money  he  might  have  derived  from  its  completion. 
Rogers,  J.,  says :  "  The  distinction  is,  whether  the  vendor 
acts  with  good  or  bad  faith.  If  the  refusal  of  the  wife  to 
execute  the  deed  is  a  mere  pretext,  the  result  of  collusion  at 
the  instigation  of  the  husband  to  rid  himself  of  an  improvi- 
dent contract,  the  price  having  risen  in  the  intermediate 
time  between  making  the  agreement  and  its  completion,  he 
must  respond  for  the  difference  in  value.  Justice  and  good 
policy  require  this  to  be  the  rule,  for  otherwise  the  advan- 
tage would  be  entirely  on  the  side  of  a  vendor,  who  would 
be  often  under  great  temptation  to  violate  his  contract, 
when  the  difference  in  price  was  so  great  as  to  excite  his 
cupidity." 

1  Shaw  V.  Wilkins,  8  Humph.  647  ;  r.  Tanner,  2  J.  J.  Marsh.  399  ;  Rut- 
McKee  v.  Brandon,  2  Scam.  .33!) ;  Buck-  ledge  v.  Lawrence,  1  A.  K.  Marsh.  396  ; 
master  v.  Grundy,  1  Scam.  310;  Hop-  Bryant  v.  Hambrick,  9  Geo  133;  Mar- 
kins  V.  Yowell,  5  Yerg.  305 ;  Hopkins  shall  v.  Haney,  9  Gill,  251,  4  Md.  498  ; 
V.  Lee,  6  Wheat.  109;  Cannell  v.  Me-  Whiteside  i>.  Jennings,  19  Ala.  784. 
Clean,  6  Harr.  &  John.  297  ;  Stephen-  -  Bitner  v.  Brough,  11  Penn.  127, 
son  V.  Harrison,  3  Litt.  170;  Duncan  139. 

10* 


114  LAW    OF    VENDORS    AND    I'URCHASKUS.        [OH.  XXXIV. 

12.  So,  where  a  vendor  knew  that  lie  could  not  make  a 
title  to  the  land,  and  the  time  when  the  contract  was  to 
have  beeji  performed  did  not  appear  ;  held,  the  value  of  the 
land  at  the  time  of  swearing  tlie  jury  should  be  the  measure 
of  damages.' 

13.  So,  in  an  action  on  an  agreement  to  convey  land,  where 
the  plaintiff  had  paid  the  consideration,  and  the  defendant 
had  fraudulently  omitted  in  the  deed  of  conveyance  part  of 
the  land  contracted  for ;  it  was  held  not  to  be  error,  that  the 
Judge  told  the  jury,  that  though,  as  a  general  rule,  the  indue 
of  the  property  was  the  measure  of  damages,  yet  they  were 
not  imperatively  restricted  to  that  standard,  but  might  in- 
clude in  their  verdict  the  necessary  expenses  of  the  plaintiff, 
if  they  deemed  it  prudent  and  reasonable  to  do  so.^ 

14.  So,  in  an  action  for  the  breach  of  a  contract  to  ex- 
change lands,  the  measure  of  damages  is  the  difference  in 
the  value  of  the  premises  agreed  to  be  exchanged,  together 
with  the  expense  of  preparing  the  plaintiff's  title  papers, 
and  the  abstract  tendered.  And  such  damages  may  be  re- 
covered, though  no  special  damage  be  alleged.^ 

15.  A  purchaser,  before  any  conveyance  to  him,  put  up  the 
estate  for  sale  in  lots  by  auction,  and  engaged  to  make  a  good 
title  by  a  certain  day,  which  he  was  unable  to  do  for  want 
of  such  conveyance.  Held,  a  purchaser  of  certain  lots  might, 
in  an  action  for  not  making  a  good  title,  recover  not  only 
the  expenses  which  he  had  incurred,  but  also  damages  for 
the  loss  which  he  sustained  by  not  having  the  contract  car- 
ried into  effect.  The  Judge,  on  the  trial,  told  the  jury  they 
were  not  bound  to  confine  their  verdict  to  nominal  damages, 
and  a  verdict  was  rendered  for  the  plaintiff  for  £70,  which 
the  Court  of  King's  Bench  refused  to  disturb.  Abbot,  C.  J., 
says  :  "  If  it  is  advanced  as  a  general  proposition  that  when 
a  vendor  cannot  make  a  good  title,  the  purchaser  shall  re- 
cover nothing  more  than  nominal  damages,  I    am  by  no 


'  McConnel  v.  Dunlap,  Hard.  41.  ^  Fagen  v.  Davison,  2  Duer,  153. 

-  Lee  V.  Dean -3  Whart.  316. 


CH.  XXXIV.]  DAMAGES.  115 

means  prepared  to  assent  to  it."  Bayley,  J.,  says :  "  Here 
the  vendor  had  nothing  but  an  equitable  title.  Now  where 
a  vendor  holds  out  an  estate  as  his  own,  the  purchaser  may 
presume  that  he  has  had  a  satisfactory  title,  and  if  he  holds 
out  as  his  own  that  which  is  not  so,  I  think  he  may  very 
fairly  be  compelled  to  pay  the  loss  which  the  purchaser 
sustains  by  not  having  that  for  which  he  contracted."  ^ 

16.  It  has  been  held,  that,  where  the  vendor,  from  inability 
to  make  a  title,  fails  to  complete  the  sale,  the  purchaser  can- 
not recover,  as  damages,  expenses  incurred  previously  to  the 
contract ;  nor  the  expense  of  a  survey  of  the  estate ;  nor  of 
a  conveyance ;  nor  the  extra  costs  of  a  Chancery  suit,  in 
which  the  vendor  is  defeated  ;  nor  losses  sustained  by  the 
resale  of  stock  prepared  for  the  estate.  But  he  is  entitled  to 
recover  the  expense  of  comparing  deeds,  searching  for  judg- 
ments, and  of  journeys  for  that  purpose  ;  and  interest  on  his 
deposit  money.2 

17.  While  the  measure  of  damages  has  in  some  cases 
been  made  to  depend  upon  the  bona  fides  of  the  vendor,  the 
general  rule  of  law,  by  which  a  party  is  not  allowed  to 
recover  damages  for  a  loss  sustained  even  in  part  by  his 
own  fault  or  negligence,  has  been  applied  to  a  vendee  who 
is  thus  chargeable. 

18.  The  plaintiff  having  contracted  with  the  defendant 
for  the  purchase  of  an  estate,  the  defendant  bond  fide  deliv- 
ered an  abstract,  showing  a  good  title ;  and  the  plaintiff, 
before  he  examined  it  with  the  original  deeds,  contracted  to 
resell  several  portions  of  the  property  at  a  considerable 
profit.  Upon  a  subsequent  examination  of  the  abstract  with 
the  deeds,  the  plaintiff  discovered  that  the  title  was  defec- 
tive ;  and  thereupon  the  sub-purchasers  refused  to  complete 
their  purchases,  and  he  refused  to  complete  his  purchase 
from  the  defendant,  and  brought  an  action,  wherein  he 
claimed  as  damages  the  expense  of  investigating  the  title, 
the  profit  that  would  have  accrued  from  the  resale,  the  ex- 

i  Hopkins  v.  Grazebrook,  6  Barn.  &  -  Hodges  v.  Litchfield,  1  Bing.  N.  S. 
Cress.  31,  a  very  leading  case.  492. 


116  LAW    OF   VENDORS   AND   PURCHASERS.        [CII.  XXXIV. 

pense  attending  the  resale,  and  the  sums  which  he  was  liable 
to  pay  to  the  sub-contractors  for  the  expenses  incurred  by 
them  in  examining  the  title.  Held,  he  was  entitled  to  recover 
only  the  expenses  that  he  had  incurred  in  the  investigation 
of  the  title,  and  nominal  damages  for  the  breach  of  contract, 
as  no  fraud  could  be  imputed  to  the  vendor.  Bayley,  J., 
says  :  "  The  plaintiff  must  show  that  the  damages  which  he 
seeks  to  recover  arose  from  the  acts  of  the  defendants,  and 
not  from  his  own  haste.  If  the  abstract  had  been  examined 
with  the  deeds  and  found  correct,  the  plaintiff  might  perhaps 
have  been  justified  in  acting  on  the  faith  of  having  the 
estate  ;  and  if  after  that  time  he  had  made  a  sub-contract, 
I  think  he  would  have  been  entitled  to  recover  the  expenses 
attending  it  if  it  failed  in  consequence  of  any  defect  in  the 
title  of  his  vendor.  And,  further,  if  there  were  mala  fides 
in  the  original  vendor,  but  not  otherwise.  I  am  not  prepared 
to  say  that  the  purchaser  might  not  recover  the  profit  which 
would  have  arisen  from  the  resale.  But  if  premises  for 
which  a  party  has  contracted  are  by  him  offered  for  resale 
too  soon,  that  is  at  his  own  peril,  and  the  damage,  if  any, 
resulting  from  such  offer,  arises  from  his  own  premature  act, 
and  not  from  the  fault  of  his  vendor.  Here  I  think  the 
plaintiff  was  premature,  and  therefore  cannot  recover."  ^  [a) 

1  Walker  v.  Moore,  10  Barn.  &  Cress.  416,  421. 


(a)  The  following  miscellaneous  points  illustrate  the  subject  of  this 
chapter  : — 

Where  a  party  agrees  to  demise  certain  premises  to  another,  who  breaks 
up  his  establishment,  and  proceeds  with  his  family  and  furniture  to  the 
place  where  the  premises  are  situate,  and  the  landlord  refuses  to  give  pos- 
session, the  tenant  is  entitled  to  recover  the  damages  sustained  by  such 
removal,  although  special  damage  is  not  alleged.  Di'iggs  v.  Dwight,  17 
Wend.  71.* 

*  The  tenant  in  such  case  is  not  bound  to  prove  that  he  demanded  a  lease  from 
the  landlord,  or  tendered  one  executed  by  himself,  especially  if  it  he  shown  in 
addition  to  the  refusal  to  give  possession,  that  the  landlord  did  not  intend  to  .per- 
form the  contract.     Ibid. 


CII.  XXXIV.]  '  DAMAGES.  117 

Deficiency  of  quantity,  if  so  great  as  to  defeat  the  object  of  a  purchase, 
is  good  cause  for"  rescinding  a  contract  for  lands.  And  it  may  be  set  oti' 
in  discount  against  the  bonds  given  for  the  consideration.  Pringle  v.  Wit- 
ten,  1  Bay,  256.  As  where  a  mill-seat  was  the  object  of  the  purchase  of  a 
tract  of  land,  and  was  taken  away  by  an  elder  grant.  Gray  v.  Handkinson, 
1  Bay,  278. 

Where  a  vendor  omits  to  make  out  a  good  title  within  the  stipulated  time, 
and  the  vendee  dies,  his  executor  may  sue  for  damage  incurred  by  loss  of 
interest  on  the  deposit-money  and  the  expense  of  investigating  the  title. 
Orrae  v.  Broughton,  10  Bing.  533.  * 

If  specific  execution  of  a  contract  to  convey  is  decreed  in  favor  of  heirs  ; 
and  the  personal  representative  also  recovers  damages  for  the  breach  in 
failing  to  convey,  the  covenantor  may  be  relieved  from  the  double  burden 
in  equity.     Combs  v.  Tarlton,  2  Dana,  464. 

In  an  action  upon  a  contract  to  convey,  the  plaintiif  is  restricted  to  the 
recovery  of  damages  sustained  prior  to  the  commencement  of  the  action. 
Warner  v.  Bacon,  (Mass.)  Law  liep.  Nov.  1856,  p.  406. 

One  who  has  been  induced  to  purchase  land  of  another  and  to  pay  him 
for  it  by  the  fraudulent  representations  of  a  third  person,  interested  to  effect 
such  a  sale,  cannot  in  a  Court  of  Equity  recover  the  amount  so  paid  of 
such  third  person,  aud  require  him  to  receive  a  conveyance  of  the  land. 
Woodman  v.  Freeman,  'i^Maine,  531. 

Where  the  amount  of  the  purchase-money  to  be  reimbursed  by  the  ven- 
dor, on  account  of  a  deficiency  in  the  quantity  of  land  agreed  to  be  con- 
veyed, is  capable  of  being  ascertained  by  computation,  it  is  a  proper  case 
for  a  tender.     Walling  v.  Kinnard,  10  Texas,  508. 

The  net  sum  only,  without  interest,  can  be  recovered  in  an  action  for 
money  had  and  received.     W^alker  v.  Constable,  1  Bos.  &  Pull.  306. 

Lands  of  the  defendant  were  put  up  by  him  at  auction ;  of  which  one 
condition  was,  that  the  purchaser  should  pay  a  deposit  and  half  the  auction 
duty.  The  plaintiff  purchased,  and  jjaid  accordingly,  and  signed  a  written 
m'emorandum  of  the  contract,  which  J.  N.,  the  auctioneer's  clerk,  also  signed 
as  follows :  "  Witness,  J.  N."  J.  N.  received  the  above  sums  for  M.,  the 
auctioneer,  and  signed  the  receipt  (being  authorized  by  M.  to  do  so)  as 
follows :  "  For  INIr.  M.,  J.  N."  Money  was  afterwards  paid  over  by  the 
auctioneer  on  the  purchase  to  B.,  the  defendant's  attorney,  as  his  agent. 
The  defendant  not  being  able  to  make  out  his  title,  B.,  as  his  agent,  wrote  a 
letter  to  the  plaintiff's  attorney,  naming  the  plaintiff  and  defendant,  saying 
that  he  could  not  make  out  the  title  to  "  this  property  as  freehold,"  advising 
the  plaintiff  to  "  relinquish  his  purchase  "  and  referring  to  the  "charges  "  to 
be  made  by  the  plaintiff's  attorney.  Held,  that  J.  N.  did  not  sign  the 
memorandum  as  agent  to  the  defendant ;  that  neither  his  agency  nor  the 
contract  was  recognized  by  the  receipt  of  the  money  or  B.'s  letter ;  that 


118  LAW    OP   VENDORS    AND   PURCHASERS.       [OH.  XXXIV. 

there  was,  consequently,  no  proof  of  a  contract  to  make  a  title,  on  which 
the  (lefetidant  could  be  charged  under  sect.  4  of  the  Statute  of  Frauds;  and 
therefore,  that,  although  the  plaintifl"  might  recover  the  deposit  and  moiety 
of  auction  duty  as  money  had  and  received,  he  could  not  recover  interest 
thereon,  nor  his  expenses  of  investigating  the  title.  Gosbell  v.  Archer,  2 
Ad.  &  Ell.  500  ;  4  Nev.  &  Man.  485. 


CH.  XXXV.]      LIQUIDATED    DAMAGES   AND    PENALTIES.  Il9 


CHAPTER    XXXV. 

LIQUIDATED    DAMAGES    AND    PENALTIES  ;    ARBITRATION  ;    DAMAGES 

IN    EQUITY. 

1.  The  amount  of  damages  to  be  recovered  by  a  vendor 
or  purchaser  of  real  estate  is  sometimes  regulated,  as  in 
other  contracts,  by  the  express  agreement  of  the  parties, 
making  their  own  appraisement  or  valuation  of  the  injury 
which  will  be  caused  by  a  violation  of  the  agreement.  Dam- 
ages thus  mutually  agreed  upon  are  termed  liquidated  or 
stipulated  damages,  and  can  neither  be  increased  nor  dimin- 
ished by  an  inquiry  into  the  true  amount  of  the  loss  sus- 
tained by  the  plaintiff  in  the  action.  The  question,  how- 
ever, often  arises,  whether  the  sum  mentioned  in  the  contract 
is  to  be  regarded  in  this  light,  or  as  a  mere  penalty^  which, 
by  a  well-established  rule  of  law,  may  be  treated  as  only  a 
security  for  the  due  performance  of  the  agreement,  leaving 
the  question  open  as  to  the  sum  to  be  recovered,  according 
to  the  circumstances  of  the  case. 

2.  Upon  this  subject  it.  is  said :  "  The  law  will  permit 
parties  to  determine  by  an  agreement  which  enters  into  the 
contract,  what  shall  be  the  damages  which  he  who  violates 
the  contract  shall  pay  to  the  other ;  but  it  does  not  always 
sanction  or  enforce  the  bargain  they  may  make  on  this  sub- 
ject. Damages  thus  agreed  upon  beforehand,  when  sanc- 
tioned by  the  law,  are  called  liquidated  damages.  Where 
the  parties  make  this  agreement,  but  not  in  such  wise  that 
the  law  adopts  it,  then  the  damages  thus  agreed  upon  are  a 
penalty,  or  in  the  nature  of  a  penalty.  And  the  question 
whether  damages  agreed  upon  are  to  be  treated  as  liqui- 
dated, or  as  in  the  nature  of  a  penalty  and  therefore  disre- 


120  LAW   OP   VENDORS    AND    PURCHASERS.         [cil.  XXXV. 

gafdcd,  often  occurs,  and  is  not.  always  of  easy  or  obvious 
solution."'  So  it  is  said,  for  the  purpose  of  dctcnniuing  this 
question,  "  the  subject-tn after  of  the  contract  may  be  in- 
quired into,  so  far  as  respects  the  situation  of  the  parties 
and  the  facts  relating  to  the  agreement ;  not,  however,  for 
the  purpose  of  controlling  the  languago,  where  that  is  clear 
and  explicit,  but  to  ascertain  the  circumstances  out  of  which 
the  contract  originated,  and  especially  in  regard  to  the  con- 
sideration." ^(rt) 

3.  The  defendant  agreed  to  take  an  assignment  of  the 
plaintiff's  house  and  premises,  without  requiring  the  lessor's 
title  ;  that  he  would  pay  £2,300  for  it,  and  also  the  amount 
of  goods,  fixtures,  and  effects,  and  take  possession  of  the 
house  on  or  before  September  29th.  The  plaintiff  agreed  to 
give  up  possession  of  the  premises,  effects,  and  stock  by  that 
day,  to  assign  licenses,  to  repair  or  allow  for  all  damaged 
outside  windows,  and  to  clear  rent,  taxes,  and  out-goings  to 
the  day  of  quitting  possession.  The  expenses,  of  the  agree- 
ment were  to  be  paid  by  the  parties  in  equal  moieties ;  and 
either  party,  not  fulfilling  all  and  every  part,  was  to  pay  the 
other  £500,  thereby  settled  and  fixed  as  liquidated  damages. 

1  2  Pars,  on  Contr.  433.  '^  Per  Hubbard,  J.,  Hodges  v.  King,  7 

Met.  586. 


(a)  The  question  referred  to  in  the  texj  has  not  ordinarily  been  raised  in 
reference  to  a  bond  wilh  penalty,  the  amount  of  such  penalty  being  usually 
made  subject,  as  the  term  itself  implies,  to  the  abatement  or  reduction  in 
Chancery,  required  by  the  circumstances  of  the  case.  But,  in  a  late  case, 
in  Massachusetts,  where  the  penalty  of  a  bond  was  in  the  usual  form,  and 
no  provision  made  for  liquidated  damages  ;  it  was  still  held,  that  the  amount 
of  the  penalty  should  be  the  measure  of  the  damages.  Hubbard,  J.,  says  : 
"  The  bond  has  indeed  a  condition  ;  but  that  is  matter  of  form,  and  can- 
not turn  that  into  a  penalty  which,  but  for  the  form,  is  an  agreement  to  pay 
a  precise  sum  under  certain  circumstances.  And  the  agreement  to  pay  ■ 
interest  on  the  sum  is  a  strong  corroboration  of  this  construction  of  the 
instrument ;  as  in  penal  bonds  such  a  provision  is  not  made,  but  the  party 
relies  on  the  penalty  as  the  means  of  furnishing,  full  indemnity  for  all  that 
may  be  payable  for  a  breach  of  the  condition."     7  Met.  588. 


en.  XXXV.]      LIQUIDATED   DAMAGES,   PENALTIES,  ETC.  121 

Held,  on  breach  of  the  agreement  by  omission  to  take  an 
assignment,  the  defendant  was  liable  to  pay  the  whole  X500, 
and  that  it  was  not  a  mere  penalty  to  cover  such  damages 
as  might  be  actually  incurred.' 

4.  In  an  agreement  for  the  sale  of  a  public-house,  by  the 
defendant  to  the  plaintiff,  it  was  stipulated,  that  the  seller 
should  not  be  concerned  in  carrying  on  the  business  of  a 
publican  within  a  mile  from  the  house,  "  under  the  penal 
sum  of  c£500,  the  same  to  be  recoverable  as  and  for  liqui- 
dated damages."  The  defendant  opened  a  public-house 
about  three  quarters  of  a  mile  off.  No  evidence  of  actual 
damage  was  given  by  the  plaintiff;  but  for  the  defendant 
some  witnesses  stated,  that  the  plaintiff  had  spoken  of  the 
injury  as  not  considerable.  It  was  held  at  Nisi  Prius,  that 
the  wholfe  sum  was  recoverable,  as  stipulated  damages,  but 
left  to  the  jury  to  state  what  was  the  actual  damage.  The 
jury  found  for  the  whole  sum,  and  the  Court  of  Common 
Pleas  refused  to  grant  a  new  trial.^  Best,  C.  J.,  says  :^  "  The 
law  relative  to  liquidated  damages  has  always  been  in  a 
state  of  great  uncertainty.  This  has  been  occasioned  by 
Judges  endeavoring  to  make  better  contracts  for  parties  than 
they  have  made  for  themselves.  I  think  that  the  parties  to 
contracts,  from  knowing  exactly  their  own  situations  and 
objects,  can  better  appreciate  the  consequences  of  their  fail- 
ing to  obtain  those  objects  than  either  Judges  or  juries. 
Whether  a  contract  be  under  seal  or  not,  if  it  clearly  states 
what  shall  be  paid  by  the  party  who  breaks  it  to  the  party 
to  whose  prejudice  it  is  broken,  the  verdict  in  an  action  for 
the  breach  of  it  should  be  for  the  stipulated  sum.  A  Court 
of  Justice  has  no  more  authority  to  put  a  different  con- 
struction on  the  part  of  an  instrument  ascertaining  the 
amount  of  damages,  than  it  has  to  decide  contrary  to  any 
other  of  its  clauses.  The  claim  for  damages  must  depend 
not  only  on  things  which  have  been  done,  which  are  difficult 

1  Reillv  V.  Jones,  1  Bins.  302.  s  3  Qr^y_  ^  p  242. 

-  Crisdee  v.  Bolton,  3  Car.  &  P.  240. 

VOL.  II.  11 


122  LAW   OF    VENDORS   AND    PURCHASERS.         [CH.  XXXV. 

of  proof,  but  on  what  may  be  done,  which  it  is  impossible 
to  prove,  I  cannot  subscribe  to  the  doctrine  attributed  to 
Lord  Tenterden  in  Randall  v.  Everest.  If  it  be  doubtful 
from  the  terms  of  the  contract,  whether  the  parties  mean 
that  the  sum  mentioned  in  it  shall  be  a  penalty  or  liquidated 
damages,  then  I  should  incline  to  consider  the  change  as 
creating  a  penalty,  and  not  giving  stipulated  damages.  So 
if  but  one  sum  is  mentioned,  and  there  may  be  several 
breaches,  and  it  is  not  distinctly  stated  that  this  sum  is  to 
be  paid  on  each  breach,  I  should  hold,  as  the  Court  held  in 
Astley  V.  Weldon,  that  the  sum  mentioned  was  to  be  con- 
sidered only  as  a  penalty.  In  this  case  the  sum  of  =£500 
is  to  be  paid  for  the  doing  of  one  thing  only.  It  is  called  a 
penal  sum,  and  I  will  admit  that  the  parties  considered  it  as 
something  more  than  compensation;  but  they  have  expressly 
agreed  that  this  penal  sum  shall  be  recovered  as  and  for 
stipulated  damages." 

5.  When  a  contract  is  such  that  the  damages,  in  case  of 
a  violation,  will  be  uncertain  in  their  nature  and  amount, 
and  the  parties  have  stipulated  that,  in  the  event  of  a  breach, 
a  certain  sum  shall  be  paid  by  the  party  in  default  as  liqui- 
dated damag-es,  that  sum  will  be  treated  as  the  measure  of 
damages.  Thus  A.  contracted  to  sell  land  and  goods  to  B., 
for  which  B.  agreed  to  pay  a  certain  sum,  delivery  and  pay- 
ment to  be  made  at  a  future  day ;  the  party  who  failed  to 
perform  his  part  of  the  agreement  to  pay  the  other  $1,000. 
Held,  that  A.,  having  performed  or  offered  to  perform  his 
part  of  the  contract,  was  entitled  to  recover  $1,000  as  liqui- 
dated damages.^  Strong,  J.,  says  :'-^  "  There  are  various  legal 
rules  for  ascertaining  whether  a -sum  named  in  a  contract,  to 
be  paid  by  a  defaulting  party,  was  intended  as  liquidated, 
damages,  or  as  a  penalty  merely.  Among  these  rules  is  one 
well  established  by  numerous  decisions,  that  when  a  con- 
tract is  such  that  the  damages,  in  case  of  a  violation  of  it, 
will  be  uncertain  in  their  nature  and  amount,  and  the  parties 

1  Mundy  v.  Culver,  18  Barb.  336.  2  im^  338-9. 


CH.  XXXV.]      LIQUIDATED   DAMAGES,   PENALTIES,   ETC.  123 

have  stipulated  that  in  the  event  of  a  breach  a  certain  sum 
shall  be  paid  by  the  party  in  default,  as  liquidated  damages, 
they  will  be  regarded  as  having  so  intended,  and  that  sum 
will  be  treated  as  the  measure  of  damages.  The  sum  agreed 
upon  as  damages,  was  designed  as  the  damages  for  a  total 
non-performance.  The  case  is  not,  therefore,  one  of  a  con- 
tract, with  several  stipulations  of  various  degrees  of  im- 
portance, as  to  some  of  which  the  damages  might  be  con- 
sidered liquidated,  whilst  for  others  they  may  be  deemed 
unliquidated,  and  a  sum  of  money  is  made  payable  on  the 
breach  of  any  of  them  ;  nor  is  it  the  case  of  a  larger  sum 
stipulated  as  damages  for  the  non-payment  of  a  smaller 
one ;  in  which  cases  the  Courts  have  held  the  sum  named, 
although  denominated  liquidated  damages,  a  penalty.  In- 
deed, the  contract  in  question,  in  legal  effect,  provides  for  a 
single  act  on  each  side — the  sale  of  the  land  and  goods  by 
the  plaintiff,  and  the  payment  therefor  by  the  defendant. 
Notwithstanding  the  form  of  the  contract,  it  is  apparent  that 
what  was  to  be  done  by  each  of  the  parties,  was  regarded 
by  them  as  much  an  entire  thing  as  if  it  had  formed  the 
subject  of  a  single  stipulation." 

6.  An  agreement  not  under  seal  for  the  lease  of  a  public 
house  contained  a  clause,  that  the  party  neglecting  to  com- 
ply with  his  part  of  the  agreement  should  pay  the  sum  of 
<£100,  mutually  agreed  upon  to  be  the  damages  ascertained 
and  fixed  on  breach  thereof.  Held,  the  party  making  a  de- 
fault was  not  liable  beyond  the  damages  actually  sustained.^ 
Abbott,  C.  J.,  says  :^  "  A  great  deal  has  been  said  about  the 
different  import  of  the  terms  penalti/  and  stipulated  damages ; 
but  I  am  of  opinion,  and  shall  always  hold  so  until  com- 
pelled by  a  higher  authority  to  say  otherwise,  that  whether 
the  term  penalty  or  liquidated  da^jnages  be  used  in  the  agree- 
ment, a  party  who  claims  compensation  for  a  default  shall 
only  be  allowed  to  recover  what  damage  he  has  really  sus- 
tained.    Whatever  language  the  parties  may  choose  to  use, 

1  Randall  v.  Everest,  M.  &  M.  41.  2  ibi(j_  49. 


12-i  LAW    OF    VENDORS    AND    I'URCnASERS.        [CH.  XXXV. 

I  ;im  of  opinion,  in  j)()int,  of  law,  that  a  jury  cannot  be 
called  upon  to  give  more  damage  than  the  party  has  really 
sustained.  I  confine  my  opinion  to  contracts  not  under  seal; 
instruments  in  that  form  may,  perhaps,  receive  a  different 
construction." 

7.  Defendant  agreed  to  grant  a  lease  with  the  usual  cov- 
enants, and  plaintiff  to  execute  a  counterpart  and  pay  the 
expenses;  and,  for  the  true  performance  of  the  agreement, 
each  of  the  parties  bound  himself  in  the  penalty  of  JjSOO,  to 
be  recovered  against  the  defaulter  as  liquidated  damages. 
Held,  that  the  £500  must  be  considered  as  a  penalty,  and 
not  as  liquidated  damages.' 

8.  A.  agreed  with  B.  to  sell  him  the  stock  and  good-will 
of  his  business,  and  to  demise  to  him  his  house  in  which 
the  business  was  carried  on,  for  which  B.  was  to  pay  X800, 
and  to  take  the  farniture  and  fixtures  at  a  valuation.  They 
were  afterwards  valued  at  X174.  .£400  was  paid  to  A.  at 
the  time  of  executing  the  agreement,  and  B.  agreed  to  ac- 
cept and  pay  two  bills  of  exchange,  one  for  £400,  payable 
twelve  months  after  date,  and  the  other  for  £1'74,  payable 
two  months  after  date;  and  A.  agreed  not  to  carry  on  the 
business  within  five  miles  of  the  house.  And,  for  the  true 
performance  of  this  agreement,  each  of  them  did  thereby 
bind  and  oblige  himself  to  the  other  of  them  in  the  penal 
sura  of  £500,  to  be  recoverable  for  breach  of  the  said  agree- 
ment in  a  Court  of  Law,  as  and  by  way  of  liquidated  dam- 
ages. Held,  that  this  sum  was  a  penalty,  and  not  liqui- 
dated damages.^  Abbott,  C.  J.,  says:  "  The  sum  of  £500 
is  described  in  the  same  sentence  as  a  penal  sum  and  as 
liquidated  damages.  Now  both  expressions  cannot  be  satis- 
fied. We  must  therefore  look  to  the  whole  of  the  agreement 
in  order  to  ascertain  whether  the  £500  was  intended  to  be  a 
penalty  or  liquidated  damages ;  and,  considering  the  whole 
agreement,  we  think  it  was  clearly  intended  as  a  penalty." 

1  Boys  V.  Ancell,  5  Bing.  N.  C.  390.         ^  Davics  v.  Penton,  6  B.  &  C.   216, 

222  ;  9  Dowl.  &  Ry.  369. 


CH.  XXXV.]       LIQUIDATED    DAMAGES,  PENALTIES,   ETC.  125 

Bayley,  J.,  says  :  ^  "  Where  the  sum  which  is  to  be  a  secu- 
rity for  the  performance  of  an  agreement  to  do  several 
acts,  will,  in  case  of  breaches  of  the  agreement,  be  in  some 
instances  too  large,  and  in  others  too  small  a  compensation 
for  the  injury  thereby  occasioned,  that  sum  is  to  be  consid- 
ered a  penalty.  It  could  not  have  been  intended  here  to  fix 
the  sum  of  X500  as  a  maximum,  if  nothing  was  paid  in 
respect  of  either  of  the  bills,  for  in  that  case  the  party  would 
be  entitled  to  receive  £574.  In  that  case  ,£500  would  be 
too  small  a  compensation  for  the  breach  of  the  agreement. 
On  the  other  hand,  if  the  £400  bill  had  been  paid,  and  that 
for  £174  alone  remained  unpaid,  the  £500  would  much 
exceed  fair  compensation  for  that  breach  of  the  agreement." 
Holroyd,  J.,  says  :  -  "If  it  is  a  penalty,  the  Court  will 
treat  it  as  such,  and  the  stipulation  that  it  shall  be  recovered 
as  liquidated  damages  will  not  prevent  the  party  from  insist- 
ing on  the  compulsory  provision  of  the  Stat.  8  &  9  Will. 
III.,  c.  11,  s.  8,  as  to  assessing  damages." 

9.  A  principal  test  of  imliquidated  damages,  even  where 
there  is  an  express  provision  that  they  shall  be  liquidated^ 
has  been  held  to  be,  that  the  agreement  has  been  violated 
only  in  part. 

10.  The  plaintiff  agreed  to  convey  certain  premises  to  the 
defendant  upon  certain  payments  being  made.  A  stipula- 
tion in  the  agreement  was,  "  to  pay  one  to  the  other,  the 
sum  of  $500  as  liquidated  damages,  in  case  one  of  the  par- 
ties shall  fail  to  perform  said  contract."  The  defendant  paid 
$100  of  the  purchase-money.  Held,  the  $500  was  to  be 
deemed  liquidated  damages,  but  payable  only  in  case  of  a 
total  failure  to  perform  the  contract,  and  that  the  defendant 
was  only  liable  for  actual  damages.^ 

11.  The  defendant  gave  a  bond  to  the  plaintiff  "  in  the 
full  and  just  sum  of  $500  liquidated  damages,"  to  convey  to 
the  plaintiff  on  demand  3000  feet  of  land  in  a  city  on  the 
corner  of  two  streets,  named,  including  a  certain  house  and 

'6B.  &C.  223.  '^  lb.  224.  ^  j^ampnian  u,  Cochran,  19  Barb.  388. 

11* 


126         -  LAW    OF    VENDORS   AND    I'UllCIIAStUS.         [ril,  XXXV. 

shed  ;  and  afterwards,  on  demand  of  tlu-  plaintiff,  executed  a 
deed  to  hiiu  of  a  lot  of  land,  described  by  metes  and  bounds, 
at  the  corner  of  those  streets,  with  the  buildings  thereon 
standing.  The  plaintiff  accepted  the  deed,  and  the  parties 
agreed  that,  if  not  right,  it  should  be  made  so.  A  subse- 
quent survey  showed,  that  the  land  conveyed  did  not  include 
the  shed,  and  contained  but  2,513  feet.  In  an  action  on  the 
bond,  held,  as  the  plaintiff  had  accepted  the  deed  in  part- 
performance  of  the  bond,  the  sum  of  $500  was  not  to  be 
regarded  as  liquidated  damages,  but  that  the  plaintiff  could 
recover  only  his  actual  damages.  Shaw,  C.  J.,  says  :  "  The 
question,  what  is  liquidated  damages  and  what  a  penalty,  is 
often  a  difficult  one.  It  is  not  always  the  calling  of  a  sum, 
to  be  paid  for  breach  of  contract,  liquidated  damages,  which 
makes  it  so.  In  general,  it  is  the  tendency  and  preference  of 
the  law,  to  regard  a  sum  stated  to  be  payable  if  a  contract 
is  not  fulfilled,  as  a  penalty  and  not  as  liquidated  damages  ; 
because  then  it  may  be  apportioned  to  the  loss  actually  sus- 
tained. But  without  going  at  large  into  the  subject,  one 
consideration,  we  think,  is  decisive,  against  recovering  the 
sum  in  question  as  liquidated  damages,  namely,  that  here 
there  has  been  a  part-performance,  and  an  acceptance  of 
such  part-performance.  If  the  parties  intended  the  sum 
named  to  be  liquidated  damages  for  the  breach  of  the  con- 
tract therein  expressed,  it  was  for  an  entire  breach.  Whether 
divisible  in  its  nature  or  not,  it  was  in  fact  divided  by  an 
offer  and  acceptance  of  part-performance.  It  is  like  the  case 
of  an  obligation  to  perform  two  or  more  independent  acts, 
with  a  provision  for  single  liquidated  damages  for  non-per- 
formance ;  if  one  is  performed,  and  not  the  other,  it  is  not  a 
case  for  the  recovery  of  the  liquidated  damages."  ^ 

12.  While  it  has  been  held  that  the  full  amount  of  a  pen- 
alty, or  even  of  liquidated  damages,  is  not  in  all  cases  recov- 
erable ;  it  has  also  been  held,  that  the  party  for  whose  benefit 
the  penalty  is  provided  does  not  thereby  lose  his  right  of 
otherwise  enforcing  the  contract. 

1  Shute  V.  Taylor,  5  Met.  61,  67. 


CII.  XXXV.]      LIQUIDATED    DAMAGES,   PENALTIES,   ETC.  127 

13.  A  proviso  was  inserted  in  articles  for  the  purchase  of 
an  estate,  that,  if  either  party  should  break  the  agreement, 
he  should  pay  XlOO  to  the  other.  The  defendant,  the  ven- 
dor, on  being  offered  two  years'  purchase  more,  accepted  it, 
notwithstanding  his  agreement.  Lord  Hardwicke  decreed  a 
specific  performance  of  the  articles,  remarking  as  follows  : 
"  As  to  the  defence  of  the  stipulated  sum,  I  cannot  take  this, 
to  let  off  either  party  when  they  please,  but  is  no  more  than 
the  common  case  of  a  penalty,  for  it  might  be  inserted  by 
the  plaintiff  in  order  to  be  paid  for  his  trouble  of  viewing 
and  measuring  the  estate,  taking  plans,  &c.,  supposing  the 
defendant  should  not  be  able  to  make  out  a  title,  hi  all 
these  cases  where  penalties  are  inserted  in  a  case  of  non- 
performance, this  has  never  been  held  to  release  the  parties 
from  their  agreement,  but  they  must  perform  it  notwith- 
standing." ' 

14.  But,  upon  a  sale  of  land  at  auction,  if  the  terms  are, 
that  the  purchaser  shall  within  thirty  days  give  his  notes  with 
two  good  indorsers,  and,  if  he  shall  fail  to  comply  within  the 
thirty  days,  then  the  land  to  be  resold  on  account  of  the  first 
purchaser ;  the  vendor  cannot  maintain  an  action  against 
the  vendee  for  a  breach  of  the  contract,  until  a  resale  shall 
have  ascertained  the  deficit,  although  the  vendee  should 
instruct  an  attorney  to  draw  a  deed,  and  insert  his  name 
as  purchaser.  Livingston,  J.,  says  :  "  The  plaintiffs  offered 
no  evidence  of  any  resale,  or  of  any  deficiency  arising 
thereon,  but  contended,  that  the  remedy  by  a  resale  was 
merely  cumulative,  and  did  not  take  away  the  right  of  action 
against  the  defendant  for  his  violation  of  the  contract.  Such 
is  not  the  opinion  of  this  Court.  The  vendee,  by  the  terms 
of  sale,  had  an  option  of  taking  the  estate  after  it  was  bid 
off  to  him,  and  in  case  of  refusal,  of  having  it  sold  again  o?i 
his  account.  It  might  have  produced  more  than  on  the  first 
sale,  in  which  case  the  surplus  would  have  belonged  to  him ; 
or  the  same  price  might  have  been  obtained,  and  then  he 

'  Howard  v.  Hopkins,  2  Atk.  370. 


128  LAW  OF  VENDORS  AND  PURCHASERS.    [CH.  XXXV. 

would  liavc  lost  nothing ;  or  it  might  have  sold  for  less, 
and  then  by  ])aying  the  ditTerence  which  would  have  formed 
his  whole  loss,  he  would  not  have  been  exposed,  as  he  must 
be  if  this  action  proceeds  to  have  damages  assessed  against 
him,  by  some  uncertain  and  arbitrary  or  unsatisfactory  rule, 
which  might  be  adopted  by  a  jury.  Of  these  advantages 
which  were  reserved  to  him  by  the  terms  of  the  auction,  the 
plaintiff  had  no  right  to  deprive  him.  The  Court  is  further 
of  opinion,  that  nothing  which  was  done  after  the  sale  at  all 
varied  the  right  of  the  parties."  ^ 

15.  The  deposit  made  by  a  purchaser  may  be  considered 
somewhat  in  the  light  of  a  penalty.  And  it  has  been  held, 
in  case  of  a  sale  hy  order  of  Courts  that,  where  a  contract  is 
inequitable,  the  purchaser,  on  submitting  to  forfeit  his  de- 
posit, will  be  discharged  from  his  purchase.  The  following 
remarks  of  Lord  Macclesfield  explain  the  grounds  of  this 
decision :  "  A  Court  of  Equity  ought  to  take  notice  under 
what  a  general  delusion  the  nation  was  at  the  time  when 
this  contract  was  made  by  Mr.  Frederick,  when  there  was 
thought  to  be  more  money  in  the  nation  than  there  really  was, 
which  induced  people  to  put  imaginary  values  on  estates ; 
that  as  upon  a  contract  between  party  and  party,  the  con- 
tractor would  not  be  decreed  to  pay  an  unreasonable  price 
for  an  estate,  so  neither  ought  the  Court  to  be  partial  to 
itself,  and  do  more  upon  a  contract  made  with  itself,  or  carry 
that  further,  than  it  would  a  contract  betwixt  party  and 
party.  On  the  other  hand,  the  Court  might  be  said  to  have 
rather  a  greater  power  over  a  contract  made  with  itself  than 
with  any  other.  That  the  deposit  was  supposed  to  be  a 
proper  pledge  for  securing  the  seller  in  case  the  intended 
purchaser  should  afterwards  go  off;  and  had  it  not  been 
sufficient,  the  other  side  might  have  moved  to  have  such 
deposit  increased ;  but  being  thought  a  sufficient  pledge,  it 
was  punishment  enough  if  the  party  that  made  it  was  to 
lose  it,  and  satisfaction  enough  to  the  seller  if  he  was  to 

1  Webster  v.  Doran,  7  Cranch,  399. 


CII.  XXXV.]      LIQUIDATED   DAMAGES,  PENALTIES,   ETC.  129 

have  the  benefit  of  keeping  the  deposit ;  that  in  this  case 
the  deposit  was  nearer  tithe  of  the  purchase-money  ;  so  that 
if  the  seller  could  get  as  much  within  .£1,000  of  any  other 
purchaser,  he  would  be  no  loser ;  and  if  he  could  not  get  so 
much  within  <£1,000,  then  it  would  appear  to  be  dear  sold; 
and  consequently  a  bargain  not  fit  to  be  executed  by  this 
Court,"  &c.^ 

16.  But  where,  in  a  sale  at  auction,  one  of  several  con- 
ditions is,  that,  if  the  purchaser  shall  fail  to  comply  with 
any  of  the  conditions,  the  deposit  shall  be  forfeited  as  liqui- 
dated damages,  such  condition  forms  no  qualification  of  the 
general  promise  to  complete  the  purchase.  Therefore,  upon 
a  wrongful  abandonment  of  the  contract,  on  the  part  of  the 
purchaser,  the  vendor  may  recover  damages  beyond  the  for- 
feited deposit,  and  is  not  bound  to  state  this  condition  in 
declaring  upon  the  contract.  Lord  Denman,  C.  J,,  says  :  "  It 
is  not  meant,  by  this  condition,  that  the  deposit  shall  be 
regarded  as  liquidated  damages  as  against  a  party  who 
breaks  off  altogether.  It  is  intended  to  be  so  only  in  case 
of  a  breach  of  any  of  the  particular  conditions."  ^ 

17.  Bill  for  specific  performance.  The  defendant,  upon 
the  marriage  of  his  daughter  with  the  plaintiff,  entered  into 
a  bond  with  a  penalty  of  .£5,000,  to  settle  one  third  of  what- 
ever estate  in  lands  should  come  to  him  on  the  death  of  his 
father.  The  father  died,  and  a  considerable  estate  descended 
to  the  defendant,  but  he  failed  to  make  the  settlement  within 
the  time  limited.  The  defendant  by  his  answer  insists,  that 
he  ought  to  be  left  to  sue  the  penalty,  having  his  remedy 
upon  that  at  law ;  but  the  Lord  Chancellor  decreed  a  specific 
performance,  saying  it  was  unreasonable  to  give  an  election 
to  the  defendant,  when  the  plaintiff  could  have  none  ;  for  if 
the  lands  to  be  settled  were  not  of  the  value  of  .£5,000,  he 
could  never  resort  to  the  penalty  ;  and,  on  the  other  hand,  if 
they  exceeded  that  value,  it  was  not  just  he  should  be  left 

1  Savile  v.  Savile,  1  P.  Wms.  745-7.         -  Icely  v.  Grew,   6  N.  &  M.  467-471. 


130  LAW    OF   VENDORS   AND    PURCHASERS.         [ciI.  XXXV. 

to  it ;  neither  would  it  answer  the  intent  of  the  parties,  which 
was  to  secure  a  provision  to  the  wife  and  children  by  the 
settlement  of  the  estate  ;  because  if  the  plaintiff  was  to  have 
the  penalty,  it  must  be  as  a  debt  due  to  himself,  and  this 
Court  would  have  no  power  to  compel  him  to  do  any  thing 
out  of  it  for  their  benefit."  ^ 

18.  A.  agrees  to  demise  a  house  to  B.,  in  consideration  of 
<£300  then  paid  "  by  way  of  deposit  and  in  part  of  <£5,500," 
the  whole  purchase-money ;  possession  to  be  delivered  and 
accepted  on  a  day  named.  B.  agrees  to  accept  such  demise, 
but,  on  the  day,  refuses  to  accept ;  and  A.  afterwards  dis- 
poses of  the  house  to  a  third  party.  It  was  doubted  whether, 
upon  these  terms  alone,  the  deposit  should  be  forfeited,  or 
whether  B.  could  recover  the  deposit  from  A.  But  it  was 
held,  that  the  intention  might  be  collected  from  other  parts 
of  the  agreement.  Hence,  as  a  distinct  clause  provided  that 
either  party  making  default  should  forfeit  £1,000,  it  was  held 
that  the  deposit  was  not  to  be  forfeited,  and  might  be  recov- 
ered back.  But  not  before  A.  disposed  of  the  house.  And 
an  action  for  the  deposit,  brought  after  the  day  named  in  the 
agreement,  but  before  A.  had  disposed  of  the  house,  having 
failed,  was  held  no  estoppel  to  an  action  brought  after  A. 
had  disposed  of  the  house.  And  it  was  held  that  the  facts 
negatived  a  plea,  that  the  causes  of  the  two  actions  were 
identical.  Lord  Denman,  C.  J.,  says :  "  "^he  question,  whether 
the  deposit  is  forfeited,  depends  on  the  intent  of  the  parties 
to  be  collected  from  the  whole  instrument ;  but,  as  this  im- 
poses on  either  party  that  should  make  default  a  penalty  of 
<£  1,000,  the  intent  of  the  parties  is  clear  that  there  should 
be  no  other  remedy.  This  vendor  may  sue  for  the  penalty, 
and  recover  such  damages  as  a  jury  may  award ;  but  he 
cannot  retain  the  deposit ;  for  that  must  be  considered,  not 
as  an  earnest  to  be  forfeited,  but  as  part-payment.  But  the 
very  idea  of  payment  falls  to  the  ground  when  both  have 

1  Hopson  V.  Trevor,  1  Str.  533  ;  2  P.  Wms.  191. 


CH.  XXXV.]      LIQUIDATED    DAMAGES,  PENALTIES,  ETC.  131 

treated  the  bargain  as  at  an  end;  and  from  that  moment  the 
vendor  holds  the  money  advanced  to  the  use  of  the  pur- 
chaser." '  (a) 

1  Palmer  v.  Temple,  9  Ad.  &  Ell.  .508. 


(rt)  The  following  instructive  view  of  the  law  relating  to  liquidated  dam- 
ages is  given  by  Mr.  Greenleaf  in  his  valuabl*  work  upon  Evidence.  "  In 
cases  of  contract,  if  the  parties  themselves  have  liquidated  the  damages,  the 
jury  are  bound  to  find  the  amount  thus  agreed.  But  whether  the  sum, 
stipulated  to  be  paid  upon  breach  of  the  agreement,  is  to  be  taken  as  liqui- 
dated damages,  or  only  as  a  penalty,  will  depend  upon  the  intent  of  the 
parties,  to  be  ascertained  by  a  just  interpretation  of  the  contract.  And 
here  it  is  to  be  observed,  that  the  policy  of  the  law  does  not  regard  penalties 
or  forfeitures  with  favor  ;  and  that  equity  relieve  against  them.  And  there- 
fore, because,  by  treating  the  sum  as  a  mere  penalty,  the  case  is  open  to 
relief  in  equity,  according  to  the  actual  damages,  the  sum  will  generally  be 
so  considered ;  and  the  burden  of  proof  will  be  on  him  who  claims  it  as 
liquidated  damages,  to  show  that  it  was  intended  as  such  by  the  parties. 
This  intent  is  to  be  ascertained  from  the  whole  tenor  and  subject  of  the 
agreement ;  the  mere  use  of  the  words  "  penalty,"  "  forfeiture,"  or  "  liqui- 
dated damages,*'  not  being  regarded  as  at  all  decisive  of  the  question,  if  the 
instrument  discloses,  upon  the  whole,  a  different  intent.  The  cases,  in 
which  the  sum  has  been  treated  as  a  penalty  will  be  found  to  arrange  them- 
selves into  five  classes,  furnishing  certain  7'ules  by  which  the  intention  of  the 
parties  is  ascertained :  1.  Where  the  parties,  in  the  agreement,  have  ex- 
pressly declared  the  sum  to  be  intended  as  forfeiture  or  a  penalty,  and  no 
other  intent  is  to  be  collected  from  the  instrument.  2.  Where  it  is  doubtful 
whether  it  was  intended  as  a  penalty  or  not ;  and  a  certain  damage,  or  debt, 
less  than  the  penalty,  is  made  payable,  on  the  face  of  the  instrument. 
3.  Where  the  agreement  was  evidently  made  for  the  attainment  of  another 
object,  to  which  the  sum  specified  is  ivhoUy  collateral.  This  rule  has  been 
applied,  where  the  principal  agreement  was,  not  to  trade  on  a  certain  coast ; 
to  let  the  plaintiff  have  the  use  of  a  certain  building ;  or  of  certain  rooms ; 
and,  not  to  sell  brandy,  within  certain  limits;  but  the  difference  between 
these  and  some  other  cases,  which  have  been  regarded  as  liquidated  dam- 
ages, is  not  very  clear.  4.  Where  the  agreement  contains  several  matters  of 
different  degrees  of  importance,  and  yet  the  sum  named  is  payable  for  the 
breach  of  any,  even  the  least.  Thus,  where  the  agreement  was,  to  play  at 
Covent  Garden,  and  to  conform  to  all  the  rules  of  the  establishment,  and  to 
pay  £1,000  for  any  breach  of  them,  as  liquidated  damages,  and  not  as  a  pen- 
alty, it  was  still  held  as  a  penalty  only.     5.  Where  the  contract  is  not  under 


182  LAW    OF   VENDORS    AND    PURCHASERS.         [CH.  XXXV. 

19.  In  the  nature  of  liquidated  damages,  is  the  agreement, 
sometimes  made,  that  the  amount  of  damages  shall  be  de- 
termined by  arbUration. 

20.  Upon  this  point  it  has  been  held,  that,  where  one 
promises  to  convey  land  for  the  sum  at  which  it  shall  be 
appraised  by  three  men  ;  it  is  not  necessary  that  they  should 
be  unanimous  in  their  appraisement,  in  order  to  bind  him. 
Shaw,  C.  J.,  says :  "  This  would  constitute  a  valid  objection 
to  an  action  on  an  award  founded  on  a  submission  at  com- 
mon law,  there  being  no  stipulation  that  a  majority  should 
decide.  The  question  arises  here,  however,  under  different 
circumstances ;  the  plaintiff  founding  his  cause  of  action  on 
the  promise  of  the  defendant  to  convey  to  him  the  land.  In 
a  case  like  the  present,  if  it  appears  that  the  plaintiff  has  done 
all  in  his  power  to  procure  an  award  fixing  the  amount  to 

seal,  and  the  damages  are  capable  of  being  certainly  known  and  estimated  ; 
and  this  though  the  parties  have  expresslj'  declared  the  sum  to  be  as  Uqui- 
dated  damages. 

On  the  other  hand,  it  will  be  inferred,  that  the  parties  intended  the  sura 
as  liquidated  damages:  1.  Where  the  damages  are  uncertain,  and  are-  not 
capable  of  being  ascertained  by  any  satisfactory  and  known  rule,  whether 
the  uncertainty  lies  in  the  nature  of  the  subject  itself,  or  in  the  particular 
circumstances  of  the  case.  This  rule  has  been  applied,  where  the  agree- 
ment was,  to  pay  a  certain  sum  for  each  week's  neglect  to  repair  a  building; 
for  each  year's  neglect  to  remove  a  lime-kiln  ;  for  not  marrying  the  plaintiff; 
for  running  a  stage  on  a  certain  road,  in  violation  of  contract ;  for  breach 
of  a  contract  not  to  trade,  or  practice,  within  certain  limits ;  and  for  not 
resigning  an  office,  agreeably  to  a  previous  stipulation.  2.  AVhere,  from 
the  nature  of  the  case,  and  the  tenor  of  the  agreement,  it  is  apparent,  that 
the  damages  have  already  been  the  subject  of  actual  and  fair  calculation 
and  adjustment  between  the  parties.  Of  this  sort  are  agreements  to  pay 
an  additional  rent  for  every  acre  of  land,  which  the  lessee  should  plough 
up  ;  not  to  permit  a  stone  weir  to  be  enlarged,  "  under  the  penalty  of  double 
the  yearly  rent,  to  be  recovered  by  distress  or  otherwise ; "  to  convey  land, 
or,  instead  thereof,  to  pay  a  certain  sum  ;  to  pay  a  higher  rent,  if  the  lessee 
should  cease  to  reside  on  the  premises  ;  that  a  security  should  become  void, 
if  put  in  suit  before  the  time  limited  in  a  letter  of  license  granted  to  the 
debtor ;  and,  to  pay  a  sum  of  money,  in  goods,  at  an  agreed  price."  2 
Greenl.  Ev.  §§  258,  259. 


en.  XXXV.]       LIQUIDATED    DAMAGES    AND    PENALTIES.  133 

be  paid  by  him,  in  pursuance  of  the  terms  of  the  contract, 
we  do  not  think  that  the  act  of  any  one  of  the  persons  thus 
selected  as  arbitrators,  in  refusing  to  concur  with  his  associ- 
ates in  fixing  the  sum  to  be  paid,  should  operate  to  divest 
the  rights  of  the  plaintiff  arising  under  this  contract.  If  the 
sum  to  be  paid  by  the  plaintiff,  before  he  was  entitled  to  the 
conveyance,  could  not  be  adjusted  in  the  manner  contem- 
plated by  the  parties,  and  this  state  of  things  occurred  with- 
out the  fault  of  the  plaintitF,  the  effect  must  be,  that  he  must 
pay  for  the  land  such  a  sum  as  was  reasonable,  and  such 
sum  as  the  arbitrators  ought  to  have  awarded.  The  defend- 
ant has  refused,  on  his  part,  to  make  the  conveyance  to  the 
plaintiff  which  he  stipulated  to  make,  and  has  therefore  ren- 
dered himself  liable  in  damages  to  the  plaintiff."  ^ 

21.  Agreement  between  vendor  and  purchaser  of  a  copy- 
hold estate,  for  themselves  and  their  representatives,  to  fulfil 
the  contract  and  to  refer  the  question  of  value.  One  of  the 
parties  dying,  the  representatives  cannot  annul  the  decision 
of  the  referee,  by  showing  an  error  in  his  estimate,  or  compel 
the  acceptance  of  the  penalty,  under  which  the  agreement 
was  secured,  in  satisfaction  of  their  breach  of  contract. 
Strange,  M.  R.,  says :  "  Whatever  be  the  real  value  is  not 
now  to  be  considered,  for  the  parties  made  Harris  the  judge 
on  that  point ;  they  thought  proper  to  confide  in  his  judg- 
ment, and  must  abide  by  it,  unless  'they  could  have  made  it 
plainly  appear,  that  he  had  been  guilty  of  some  gross  fraud 
or  partiality.  It  is  like  the  case  of  a  submission  to  arbitra- 
tors, whose  award  will  never  be  set  aside  but  on  the  plainest 
proof  of  fraud  or  partiality.  The  defendants  object,  that 
they  were  not  privy  to,  nor  had  any  notice  of  the  adjudica- 
tion. Had  Mr.  Harris  proceeded  ex  parte.,  and  consulted 
with,  or  heard  the  plaintiff  on  that  head,  there  might  have 
been  some  weight  in  this  objection ;  but  it  does  not  appear 
he  consulted  either  party,  nor  was  it  necessary  he  should. 
The  difference  of  the  valuations  of  this  estate  can  never  be 

1  Phippen  v.  Stickney,  3  Met.  384,  389,  390. 
VOL.    II.  12 


134  LAW    OF    VENDORS    AND    PURCHASERS.         [cil.  XXXV. 

a  reason  for  the  Court  to  set  aside  the  adjudication,  for  that 
is  the  very  point  submitted  to  Mr.  Harris's  judgment;  and, 
were  the  Court  to  set  aside  awards,  where  no  improper  par- 
tiality, or  collusion  appeared,  merely  on  the  merits  of  the  case, 
awards  would  answer  no  end,  for  those  very  disputes  they 
are  designed  to  prevent.  It  is  very  well  known,  that  a  party 
may  come  here  for  a  specific  performance  of  an  agreement, 
notwithstanding  the  insertion  of  a  penalty  in  it." '  So,  under 
an  act  incorporating  a  company  for  the  erection  of  a  market, 
and  authorizing  them  to  purchase  certain  scheduled  heredita- 
ments, and  to  give  notice  to  parties  interested  to  send  in 
their  claims,  and  directing  that,  in  case  of  non-acceptance  of 
the  terms  offered  by  the  company,  the  value  shall  be  assessed 
in  a  certain  mode  ;  the  company  cannot,  after  giving  the 
notice,  abandon  the  purchase ;  and,  in  such  a  case,  the  Court 
granted  a  mandamus  for  the  issuing  of  the  statutory  process 
to  assess  the  value.^ 

22.  Another  question  has  arisen,  in  connection  with  the 
agreement  to  settle  damages  by  arbitration,  namely,  as  to 
the  interference  of  a  Court  of  Equity  in  decreeing  specific 
performance,  [a)  Upon  this  subject  it  is  held,  that  equity 
will  not  interfere  to  compel  specific  performance,  unless  it 
can  itself  execute  the  whole  contract,  in  the  terms  specifi- 
cally agreed  upon.  Accordingly,  where  a  bill  prayed  specific 
performance  of  a  contract,  one  term  of  which  was  to  the 
effect,  that,  if  any  damage  should  result  to  the  defendant 
from  certain  works,  the  erection  of  which  had  been  agreed 
upon  between  the  parties,  the  plaintiff  would  give  to  the 
defendant  an  equivalent  in  land,  the  amount  of  damage  and 

1  Belchier  v.  Reynolds,  2  Ld.  Keny.         -'  The  King  v.  Hungerford,  &e.  1  Nev. 
2d  part,  87,91.  &  Mann.  112. 


(a)  Proviso  in  articles  for  purchase,  that,  if  either  should  break  the  agree- 
ment, he  should  pay  £lOO  to  the  other.  The  defendant,  ou  being  offered 
two  years'  purchase  more,  accepted  it.  Lord  Hardwicke  decreed  a  specific 
performance  of  the  articles.     Howard  v.  Hopkyns,  2  Atk.  371. 


CH.  XXXV.]      LIQUIDATED   DAMAGES   AND    PENALTIES.  135 

the  quantity  of  land  to  be  ascertained  by  certain  arbitrators ; 
held,  the   Court    had   not  jurisdiction  to  gi-ant  such  relief; 
and   the  execution  of  a  deed,  containing  covenants  for  the 
performance  of  that  part  of  the  contract  which  lay  in  Jieri^ 
would  not  be  a  specific  performance.    Lord  Chancellor  Sug- 
den  says :  "  The  Court  acts  only,  when  it  can  perform  the 
very  thing,  in  the  terms  specifically  agreed  upon ;  but  when 
we  come  to  the  execution  of  a  contract,  depending  upon 
many  particulars,  and  upon  uncertain  events,  the  Court  must 
see,  whether  it  can  be  specifically  executed  ;  nothing  can  be 
left  to  depend  upon  chance ;  the  Court  must  itself  execute 
the  whole  contract.     There  are  cases  where  some  of  the  acts 
to  be  done,  consequent  on  the  specific  execution  of  the  con- 
tract, may  be  performed  subsequently.     Thus  a  contract  for 
sale  of  timber  ean  be  specifically  executed,  although    the 
timber  is  to  be  cut  down  at  a  future  time  or  at  intervals, 
and  the  money  to  be  paid  by  instalments.     It  is  a  certain 
contract,  and  the  manner  of  dealing  with  the  thing  sold,  by 
future  cuttings,  is  no  objection  to  a  specific  performance. 
The  one  man  sells  the  timber,  and  the  other  pays  for  it  the 
price  contracted  for.     Here  part  of  this  contract  is  at  once 
capable  of  a  specific  execution  ;  this  admits  of  no  doubt.  But 
then,  by  the  rule  of  the  Court,  if  I  am  called  upon  to  execute 
the  contract,  I  must  myself  specifically  execute  every  portion 
of  it ;  I  cannot  give  a  partial  execation  of  the  contract.     If 
a  man  agree  to  do  a  certain  act,  for  example,  to  dispose  of 
an  estate,  with  a  covenant  for  something  to  be  done  here- 
after,  the    Court   can   carry  such  a   contract   into    specific 
execution.     The  decree  would  give  all  that  is  presently  con- 
tracted for ;  the  immediate  transfer  of  the  estate  itself,  and 
compel  the  party  to  enter  into  the  covenant  to  do  the  par- 
ticular thing.     But  here,  there  is  an  entire  contract,  which 
must  be  executed.     Certain  things  were  to  be  done  at  once, 
and  certain  other  things  were  dependent  upon  future  contin- 
gencies.    The  plaintiff'  has  waived  his  right,  as  far  as  he 
could.     But  by  another  clause  it  is  provided,  that  if  any 


136  LAW    OF   VENDORS    AND    PURCHASERS.         [CII.  XXXV. 

damages  should  arise  to  the  lands  of  Mr.  Edwards,  from  the 
erection  of  the  dam,  the  plaintilT  should  give  an  equivalent 
in  land  as  a  compensation  for  such  damage  ;  which  damage 
the  arbitrators  were  to  fix  at  the  time  of  adjusting  the  other 
matters,  and  also  lay  off  the  quantity  of  land  to  be  given  in 
lieu  of  such  damage.  It  is  said,  that  this  operates  either  in 
prcBsenti,  and  has  been  executed  by  the  award  or  that  the 
agreement,  in  tiiis  respect,  might  form  a  part  of  the  deed. 
I  am  clearly  of  opinion,  that  this  is  not  a  matter  to  be  pres- 
ently ascertained,  but  is  dependent  upon  the  operation  of 
works  contracted  to  be  erected,  and  can  only  be  ascertained, 
after  the  works  have  been  in  operation.  The  provision  was 
to  guard  against  the  probable  chance  of  future  damage  to 
the  defendant's  land ;  no  evidence  has  been  read,  to  show 
that  it  formed  any  part  of  the  award,  or  that  the  arbitrators 
took  it  into  their  consideration,  and  the  language  of  the 
award  does  not  imply  that  they  did.  Well,  then,  it  is  a  pro- 
spective measure,  and  what  is  the  decree  to  be  ?  It  cannot 
be  made  the  subject  of  covenant ;  that  is  not  the  agreement 
of  parties.  Am  I  to  decree  the  specific  performance  of  that 
which  is  now  capable  of  being  executed  ?  and  then  (for  I 
must  go  on)  am  I  to  decree,  that  if  hereafter,  when  the 
works  not  now  commenced,  are  completed,  damage  should 
arise  to  the  defendant's  land,  the  arbitrators  shall  ascertain 
the  damage,  and  the  plaintiff  shall  convey  land,  equivalent 
in  value  to  such  damage  ?  No  one  ever  heard  of  such  a 
decree.    It  is  impossible  to  execute  this  contract  specifically."  ^ 

23.  In  this  connection  we  may  also  refer  to  some  other 
points,  upon  which  a  Court  of  Equity  has  been  called  upon 
to  interfere  with  the  question  of  damages. 

24.  Under  a  bill  by  a  vendee  to  have  the  contract  deliv- 
ered up,  on  the  ground  of  defective  title  in  the  vendor,  and 
for  compensation,  a  decree  was  made  for  delivering  up  the 
contract,  without  prejudice  to  an  action,  instead  of  an  in- 
quiry before  the  master.^     So  it  is  held  that  the  plaintiff  in 

1  Gcrvais  v.  Edwards,  2  Drn.  &  W.  80,  82.  -  Gwillim  v.  Stone,  14  Ves.  128. 


CH.  XXXV.]      LIQUIDATED   DAMAGES    AND   PENALTIES.  137 

a  bill  for  specific  performance  is  not  entitled,  generally,  to 
damages  for  non-performance,  to  be  ascertained  by  an 
issue  or  a  reference  to  the  master;  although  a  distinction 
was  made  as  to  cases  of  compensation;  as  for  a  part 
subject  to  tithes,  though  represented  tithe-free ;  giving  the 
purchaser,  if  he  chooses  to  take  the  purchase,  a  right  to 
compensation,  but  not  to  compel  the  vendor  to  purchase 
the  tithes.  Lord  Eldon  says :  "  The  case  is  very  different 
from  giving  compensation  out  of  the  purchase-money. 
My  opinion  is,  that  this  Court  ought  not,  except  under 
very  particular  circumstances,  as  there  may  be,  upon  a  bill 
for  the  specific  performance  of  a  contract  to  direct  an  issue, 
or  a  reference  to  the  master,  to  ascertain  the  damages. 
That  is  purely  at  law.  It  has  no  resemblance  to  compensa- 
tion. Where,  for  instance,  an  estate  is  held  with  an  engage- 
ment, that  a  certain  number  of  acres  are  tithe-free,  which  is 
not  the  case,  and  the  vendee  contracts  to  sell  to  another 
person  with  a  similar  engagement ;  this  Court  would  give 
compensation  for  so  much  as  was  not  tith^-free  ;  but  would 
not  give  compensation  for  the  damage,  sustained  by  not 
being  able  to  complete  the  subsequent  contract ;  which  might 
fairly  be  offered  to  the  consideration  of  a  jury.  About  the 
time  when  Denton  v.  Stewart  occurred,  some  degree  of  irri- 
tation was  excited  in  the  Court  by  persons,  called  land- 
jobbers,  contracting  for  estates  without  any  intention  of 
paying  for  them,  and  setting  up  defects  of  title,  merely  with 
the  view  of  gaining  time  to  dispose  of  them  ;  and  on  that 
ground  Lord  Rosslyn  was  prevailed  upon  to  direct  a  refer- 
ence of  the  title  immediately  on  motion ;  and  there  is  not 
much  mischief  in  that  upon  a  simple  case  of  specific  per- 
formance, where  there  is  nothing  more ;  but  the  relief  may 
be  so  modified  and  qualified,  with  reference  to  the  nature 
and  object  of  the  contract,  that,  unless  it  is  purely  that  point, 
great  difficulty  may  arise."  The  Lord  Chancellor  proceeds 
to  remark  upon  a  leading  case,  relied  upon  as  sustaining  a 
different  doctrine :  "  In  Denton  v.  Stewart  the  defendant  had 

12* 


138  LAW    OF   VENDORS    AND    PURCHASERS.         [OH.  XXXV. 

it  in  his  ])o\ver  to  perform  the  agrectnent;  and  put  it  out  of 
his  power  pending  the  suit.  The  case,  if  it  is  not  to  be 
supported  upon  that  distinction,  is  not  according  to  the 
principles  of  the  Court."  ^ 

25.  So,  in  a  later  case,  an  attorney,  falsely  represent- 
ing himself  to  be  authorized  by  the  owjiers,  entered  into 
an  agreement  on  their  behalf  to  sell  a  house  to  the  plain- 
tiJfF,  and  received  a  deposit.  The  plaintiff  filed  a  bill 
against  the  owners  and  the  attorney,  praying  a  specific 
performance,  and  in  the  alternative,  that,  if  the  agreement 
could  not  be  enforced  against  the  owners,  then  the  attorney 
might  repay  the  deposit  and  the  costs  incurred  by  the  plain- 
tiff and  the  costs  of  the  suit.  Held,  the  remedy  of  the 
plaintiff  against  the  attorney  being  altogether  at  law,  could 
not  be  had  in  this  suit,  and  the  bill  was  dismissed  with 
costs.  Lord  Langdale,  M.  R.,  says  :  "  The  question  is, 
whether  where  a  party,  having  no  sufficient  authority,  enters 
into  an  agreement,  the  disappointed  purchaser  can  come 
here  for  the  recovery  of  damages  which  he  has  been  put  to  ? 
No  authority  was  produced,  and  I  believe  that  none  exists, 
for  such  an  interposition  by  this  Court.  Judges  have  always 
in  modern  times  thought,  that  this  was  not  the  Court  for 
recovery  of  damages,  and  that  the  proper  mode  of  obtaining 
relief  was  by  an  action  at  law ;  and  it  is  reasonable  that  it 
should  be  so."  ^ 

26.  In  deciding  between  the  remedies  of  specific  perform- 
ance and  damages,  it  has  been  held  that  specific  execution 
of  an  agreement  will  be  decreed,  where  damages  wonld  not 
answer  the  intention  in  making  the  contract,  and  a -specific 
performance  is  therefore  essential  to  justice.  But  equity 
will  not  decree  specific  performance  of  a  covenant,  where, 
from  circumstances,  it  is  become  unconscientious  strictly  to 
enforce  performance  ;  except  on  the  terms  of  the  plaintiff's 
submitting  to  a  conscientious  modification  of  the  covenant ; 

1  Todd   V.    Goe,    17    Ves.  273,  276.         -  Sainsbury   v.  Jones,  2  Beav.  462, 
See  Grcenaway  v.  Adams,  12  Ves.  395,     465. 
p.  139,  n. 


en.  XXXV.]      LIQUIDATED    DAMAGES    AND    PENALTIES.  139 

in  which  case  such  modified  performance  will  be  decreed, 
especially  where  the  conduct  of  both  parties  for  a  great 
length  of  time  has  caused  the  covenant  to  be  so  acted  upon, 
as  to  make  it  unconscionable  to  refuse  a  specific  perform- 
ance, (a)  It  is  said  by  the  Court :  "  The  cases  in  which  a 
Court  of  Equity  decrees  specific  performance  of  contracts, 
are  generally  cases  in  which  damages  (which  might  be  recov- 
ered at  law)  would  not  answer  the  intention  of  the  parties 
in  making  the  contract,  and  a  specific  performance,  as  far  as 
the  contract  can  be  performed,  is  therefore  essential  to  jus- 
tice. A  Court  of  Equity  frequently  decrees  specific  per- 
formance, where  the  action  at  law  has  been  lost  by  the  de- 
fault of  the  very  party  seeking  the  specific  performance,  if 
it  be,  notwithstanding,  conscientious  that  the  agreement 
should  be  performed,  as  in  cases  where  the  terms  of  the 
agreement  have  not  been  strictly  performed  on  the  part  of 
the  person  seeking  specific  performance,  and,  to  sustain  an 
action  at  law,  performance  must  be  averred  according  to  the 
very  terms  of  the  contract.  The  Court  ought  not,  I  think, 
to  give  specific  performance  according  to  the  letter  of  the 
covenant,  for  that  would  be  unconscientious  against  the 
defendant,  in  consequence  of  the  change  of  circumstances. 
But  because  the  plaintift's  ought  not  to  have  the  covenant 
performed  literally,  they  are  not  to  lose  their  property  en- 
tirely.    The  Court  will  execute  the  covenant  according  to  a 


(a)  In  the  following  case,  relief  in  equity  was  granted,  by  way  of  dam- 
ages, upon  much  less  restrictive  principles  than  those  stated  in  the  text. 
On  a  bill  for  specific  performance  of  an  agreement  for  the  sale  of  a  house, 
the  plaintiff  made  out  his  case  ;  but,  it  appearing  that  the  defendant  had 
actually  sold  the  house  to  another  person,  for  a  valuable  consideration,  and 
without  notice  ;  the  Court  directed  the  master  to  inquire,  what  damages  the 
plaintiff  had  sustained  by  non-performance  of  the  agreement,  and  that  such 
damages,  together  with  costs,  should  be  paid  b}^  defendant.  Denton  v. 
Stewart,  1  Cox,  258. 

This  case,  however,  has  been  virtually  overruled  in  Gwillim  v.  Stone,  14 
Ves.  128  ;  and  Jenkins  i-.  Parkinson,  2  M.  &  K.  5.     See  pp.  137-8. 


140  LAW    OF    VENDORS    AND    PURCHASERS.         [cil,  XXXV. 

conscientious  modification  of  it,  to  do  justice  as  far  as  cir- 
cumstances will  permit."  ^ 

27.  After  a  decree  for  specific  performance,  the  defendant 
cannot  proceed  by  action  at  law  on  the  contract  for  dam- 
ages.'^ The  Vice-Chancellor  says  :  "  My  decree  proceeds 
upon  the  ground  that  the  defendant  had  dispensed  with  the 
time  stated  in  the  contract.  If  the  plaintifi"  in  equity  had 
before  the  decree  applied  for  an  injunction  to  restrain  the 
defendant  from  proceeding  in  an  action  at  law  to  recover 
damages,  I  should,  upon  the  same  principle,  have  then  granted 
the  injunction  ;  and  a  fortiori,  I  must  grant  it  now.  The 
proceeding  at  law  is  inconsistent  with  the  decree  in  equity." 

28.  But  a  remedy  was  granted  by  supplemental  bill,  after 
a  decree  for  specific  performance,  for  the  damages  occasioned 
to  the  plaintifi"  by  the  abstraction  by  the  defendant,  pendente 
lite,  of  part  of  the  subject-matter  of  the  suit,  being  stone  in 
a  quarry.^ 

1  Davis  V.  Hone,  2  Scho.  &  Lef.  341,         2  Reynolds  v.  Nelson,  Madd.  &  Geld. 
347.  290. 

3  Nelson  v.  Bridge,  2  Beav.  239. 


CII.  XXXVI.]      INTEREST,   RENTS    AND    PROFITS,   ETC.  141 


CHAPTER   XXXVI. 

INTEREST,   RENTS    AND    PROFITS,    IMPROVEMENTS. 

1.  We  have  already  (Chap.  4,)  treated  the  subject  of  iiiter- 
est,  either  upon  purchase-money  unpaid,  or  paid  and  recov- 
ered back  ;  in  connection  with  the  price  as  part  of  the  contract. 
As  making  part  of  the  damag-es,  to  be  recovered  by  a  vendor 
or  vendee,  the  same  topic  may  now  be  somewhat  further 
considered. 

2.  Upon  this  subject  it  is  held,  that  a  purchaser  in  posses- 
sion (a)  shall  pay  interest  on  the  purchase-money  unpaid.^ 
It  is  said,^  "  A  party  withholdingimoney  from  a  person  enti- 
tled to  it  ought  to  pay  to  the  person  thus  injured,  the  interest 
which  he  might  have  made  of  it,  if  it  had  been  paid  before." 
So  it  is  said,  per  Thurlow,  Ld.  Ch.,^  "  He  (the  purchaser) 
must  pay  interest.  A  man  cannot  purchase  a  dry  rever- 
sion, and  then  lie  by  for  years  and  expect  to  pay  no  more 
for  it  then,  than  if  he  had  completed  it  immediately." 

3.  So  it  is  held,  that  the  rents  belong  to  the  vendor  till  his 
title  is  made  good.     Afterwards,  the  purchaser  takes  them 

1  Buvnell  v.  Brown,  1  Jac.  &  Walk.         2  ihjc].  175. 
168.  ^  Child  V.  Abingdon,  1  Ves.  94. 

(a)  In  Fludyer  v.  Cocker,  12  Ves.  25,  the  act  of  taking  possession  was 
deemed  an  implied  agreement  to  pay  interest. 

In  M'Kay  v.  Melvin,  1  Ired.  73,  the  purchaser  went  into  possession,  and 
the  delay  was  caused  by  the  vendor's  death.  The  vendee  was  held  bound 
to  pay  interest. 

In  Mayo  ?;.  Purcell,  3  Munf.  243,  there  was  an  express  contract  to  pay 
interest  after  three  months,  and,  after  taking  possession  of  nearly  all  the 
premises,  the  purchaser  resisted  performance  because  he  did  not  get  pos- 
session of  the  whole.     Having  notice,  decreed  against  him. 


142  LAW    OF   VENDORS   AND    PURCHASERS.       [CII.  XXXVI. 

and  pays  interest  on  the  purchase-money.'  "  The  fair  terms," 
it  is  said,  "  would  be  to  put  the  parties  in  the  same  situation 
as  if  the  contract  had  been  performed  at  the  day ;  and  there- 
fore rents  should  be  accounted  for  on  one  side,  and  interest 
on  the  other ;  but  then  that  would  be  on  the  ground  that  the 
purchaser  ought  to  have  taken  the  estate  without  a  title,  for 
none  was  ready  at  the  day ;  therefore  the  only  fair  mode  is 
to  give  the  purchaser  his  interest  on  the  deposit  down  to  the 
time  when  the  title  was  cleared  by  the  King's  Bench  judg- 
ment, the  purchaser  not  being  bound  to  take  the  estate  till 
then."  2 

4.  Upon  the  sale  of  a  leasehold  farm,  three  years  having 
expired  pending  a  suit  in  relation  to  the  property,  interest 
was  given  to  the  vendor,  and  a  rent  set  upon  it  in  respect  of 
his  possession.^ 

5.  A  purchaser,  taking  possession  without  a  conveyance, 
was  compelled  to  pay  interest ;  though  the  money  was  to  be 
paid  at  a  particular  day,  on  execution  of  the  conveyance.* 
So  a  vendee  let  into  possession,  the  purchase-money  remain- 
ing unpaid,  shall  pay  interest  thereon,  though  the  vendor  be 
in  default,  unless  he  has  not  only  kept  the  purchase-money 
idle,  but  given  the  vendor  notice  that  he  has  so  kept  it. 
Tucker,  Pres.,  says :  "  As  to  interest  and  profits,  the  vendor 
is  to  be  considered  the  owner  of  the  money  and  entitled  to 
the  interest,  while  the  vendee  is  regarded  as  the  owner  of 
the  land  and  entitled  to  the  profits.  But  he  cannot  have 
both.  Where  the  purchaser  is  let  into  the  possession,  and 
the  perception  of  the  rents  and  profits  of  the  purchased 
estates,  he  must  pay  interest  for  his  purchase-money  ;  and  if 
the  rule  be  not  universal,  the  party  who  claims  an  exemption 
from  its  operation,  must  bring  himself  within  some  estab- 
lished exception.  That  rents  and  profits  ordinarily  bear  but 
a  small  proportion  to  the  interest  of  purchase-money,  cannot 
be   denied.     This   is  very  strikingly  the   case  in   Virginia. 

1  Pincke  v.  Curteis,  4  Bro.  C.  C.  329.         ^  Dyer  v.  Harrjrave,  10  Ves.  505. 
-  4  Bro.  333,  n.  *  Fliidyer  v.  Cocker,  12  Ves.  25. 


CH.  XXXVr.]       INTEREST,    RENTS    AND    PROFITS,    ETC.  143 

Hence,  where  there  has  been  a  sale  and  delivery  of  posses- 
sion, and  the  contract  has  been  disaffirmed,  there  can  be  no 
propriety  in  the  application  of  the  rule.  Accordingly,  it 
never  has  been  so  applied.  But  where  a  man  purchases 
land,  he  has  made  up  his  mind  to  give  his  money,  which 
would  produce  a  good  interest,  for  land  which  will  produce 
much  less.  Thus,  in  the  present  case,  had  the  title  been 
made,  and  the  money  paid,  the  purchaser  must  have  been 
content  with  the  scanty  rents,  while  the  seller  would  have 
been  receiving  full  interest.  Now,  since  a  Court  of  Equity 
looks  upon  the  sale  as  complete  so  soon  as  the  parties  have 
contracted,  it  is  quoad  this  matter,  the  same  thing  as  if  the 
conveyance  had  been  actually  made  ;  provided  the  vendee 
has  had  actual  possession,  and  uninterrupted  enjoyment,  and 
there  are  no  particular  circumstances  to  take  the  case  out  of 
the  general  rule.  From  the  moment  of  the  contract,  the 
buyer  is  the  owner  of  the  land,  and  must  rest  satisfied  with 
his  rents  ;  and  the  seller  is  the  owner  of  the  money,  and  is 
entitled  to  his  interest."  ^ 

6.  Where  the  execution  of  a  deed  and  payment  of  the 
price  are  to  be  simultaneous  acts,  the  me^e  omission  of  the 
vendor  to  give  the  deed,  before  demand,  or  offer  of  payment, 
is  not  such  a  default  as  will  exempt  the  vendee  in  possession 
from  payment  of  interest.^  Thus  the  plaintiff  and  defendant 
were  jointly  interested  in  a  lease  of  vacant  and  unimproved 
city  property.  They  also  had  an  equitable  title  to  the  re- 
version, under  a  covenant  of  the  lessor,  contained  in  the 
lease,  to  convey  the  property  in  fee.  The  plaintiff  contracted 
to  sell  to  the  defendant  all  his  interest  in  the  property,  the 
conveyance  to  be  given,  and  the  price  paid  or  secured,  on  a 
certain  day.  The  day  passed,  nothing  having  been  done  in 
execution  of  the  agreement  by  either  party  ;  but  the  defend- 
ant proceeded  to  erect  stores,  &c.,  upon  the  land,  and  received 
large  rents  and  profits  ;  and,  in  an  account  afterwards  stated. 


'  Brockenbrough  i-.  Blythe,  3  Leigh,        -  Stevenson  v.   Maxwell,   2    Comst. 
619.  408. 


144  LAW    Oli"    VENDORS    AND   PURCHASERS.      [ciI.  XXXVI. 

he  was  charged  with  the  purchase-money  and  interest,  but 
not  with  any  part  of  the  rents.  Held,  his  possession,  &c., 
were  under  the  contract  of  sale,  not  the  lease,  and  he  was 
bound  to  pay  interest  on  the  price.  The  Court  remark  :  ^ 
"  The  most  that  can  be  said  is,  that  the  complainant  did  not 
put  the  defendant  in  default,  not  that  he  was  in  default  him- 
self. This  is  not  sufficient  to  excuse  the  payment  of  in- 
terest. Here  the  defendant  had  the  benefit  of  the  purchase- 
money.  His  situation  is  the  same  as  if  he  had  received  a 
conveyance  and  given  security  according  to  the  contract, 
when  he  must  have  paid  interest.  He  was  compelled  to 
borrow  to  make  improvements  ;  the  money  was  therefore  of 
importance  to  him.  In  addition  to  which  he  received  all  the 
rents  and  profits.  A  weaker  case  for  exemption  from  the 
payment  of  interest,  can  scarcely  be  imagined.  The  fact 
that  the  lot  was  unimproved  when  sold,  does  not  vary  the 
equity  of  the  case.  It  was  vacant  when  purchased  by  these 
parties,  but  we  cannot  suppose  that  after  paying  $6,000  for 
opening  a  street,  they  intended  it  should  remain  so.  They 
designed  to  improve  it.  The  contract  deprived  the  com- 
plainant of  the  right  to  do  this  on  his  own  account  or  in 
conjunction  with  the  defendant,  and  transferred  that  privi- 
lege to  the  latter  exclusively." 

7.  By  conditions  of  sale,  the  purchase-money  was  to  carry 
interest,  a  deposit  of  <£20  per  cent,  to  be  paid,  and  the  auc- 
tion duty  borne  equally  by  the  purchaser  and  the  vendor. 
The  purchaser  paid  only  the  amount  of  the  deposit,  and  out 
of  it  the  auctioneer  paid  the  whole  of  the  auction-duty. 
Held,  the  portion  of  the  deposit,  applied  in  discharge  of  the 
purchaser's  moiety  of  the  auction-duty,  was  to  be  considered 
as  an  unpaid  part  of  the  purchase-money,  and  that  the  ven- 
dor was  entitled  to  interest  on  it.^ 

8.  Under  an  inclosure  act,  an  allotment  had  been  made  to 
the  impropriator,  in  lieu  of  tithes  ;  and,  by  the  act,  the  tithe's 
were  to  cease  on  the  allotment  being  made ;  but  the  act  did 

1  Ibid.  415.  ■■^  Townshend  v.  Townsheiid,  2  Russ.  303. 


Cir.  XXXVI.]        INTEREST,    RENTS    AND    PROFITS,    ETC.  145 

not  authorize  the  sale  of  allotments  before  execution  of  the 
award.  In  the  interim,  the  impropriator  agreed  to  sell  his 
allotment  for  £700,  to  be  paid  on  a  certain  day,  upon  execu- 
tion of  a  good  and  valid  title.  The  award  was  not  made 
until  several  years  after  the  agreement ;  but  the  purchaser 
had  been  all  along  in  possession.  The  Court  ordered  him 
to  pay  four  per  cent,  interest  on  his  purchase-money,  from 
the  day  appointed,  although  a  good  title  could  not  be  made 
until  the  award  was  executed,^ 

9.  The  general  rule  of  the  Court,  on  a  bill  for  perform- 
ance of  a  sale,  is,  to  allow  interest  from  the  period  fixed  for 
completion,  and  to  give  the  purchaser  the  rents  and  profits. 
But  where  the  vendor  has  unjustifiably  caused  delay,  and 
the  interest  will  exceed  the  rents,  he  will  be  refused  the 
former,  retaining  the  latter.^ 

10.  A  vendee  put  into  possession  is  bound  to  pay  interest 
on  the  balance  of  purchase-money  unpaid,  though  the  ven- 
dor binds  himself  to  make  a  good  and  lawful  title  before  he 
calls  for  the  unpaid  purchase-money ;  or  though  the  vendee's 
contract  is,  to  pay  the  balance  of  the  purchase-money  when 
a  good  title  is  made.^  So  a  purchaser,  thoroughly  informed 
of  defects  in  the  title,  but  agreeing  to  pay  interest  from  a 
certain  day,  shall  not  be  relieved  on  the  ground  that  he  could 
not  get  possession  of  part  of  the  land,  which  he  knew  at  the 
time  to  be  held  by  another  person.*  So  a  vendee  on  credit, 
to  whom  a  deed  is  made  and  possession  given,  is  not  ex- 
cused from  paying  interest,  though  payment  has  been  de- 
layed by  an  adverse  claim,  and  a  protracted  suit  thereon,  but 
which  terminated  in  his  favor,  he  having  continued  all  that 
time  in  possession,  and  enjoyed  the  issues  and  profits.  The 
vendor,  having  only  covenanted  to  sell  and  convey  a  perfect 
title,  which  was  so  conveyed,  as  proved  by  the  result  of  the 
trial ;  not  that  there  should  be  no  adverse  claimants ;  com- 
mitted no  breach  of  his  covenant,  which  excuses  the  vendee 

'  Attorney,  &c.  v.  Christ  Church,  13         ^  Oliver  v.  Hallam,  1  Gratt.  298. 
Sim.  214.  *  Mavo  v.  Purcell,  3  Muiif.  243. 

-  Dius  V.  Glover,  1  Hoff.  Ch.  72. 

VOL.  II.  13 


146  LAW    OF    VENDORS    AND    PURCHASERS.       [cil.  XXXVI, 

from  paying  interest ;  nor  can  the  vendee's  costs  be  set  off 
against  the  interest.  To  excuse  the  vendee  from  paying  in- 
terest during  the  time  that  the  adverse  claim  is  in  suit,  it  is 
not  sufficient  that  he  should  be  ready  and  willing  to  pay  the 
principal ;  it  ought  also  to  appear  clearly,  that  he  did  in  fact 
keep  the  money  useless  and  unproductive  by  him,  and  that 
he  gave  the  vendor  notice  that  it  was  so  unproductive. 
Although  the  adverse  claim  was  by  the  Commonw^ealth,  who 
proceeded  to  escheat  the  land  by  inquisition,  (which  was 
opposed  by  the  vendee  by  a  Monstrans  de  droit.)  who  de- 
feated the  claim)  the  supposed  seizin  in  law  into  the  hands 
of  the  Commonwealth  by  the  office  found,  and  the  supposed 
liability  of  the  vendee  to  the  Commonwealth  for  the  rents 
and  profits,  did  not  prevail  over  the  actual  seizin  of  the 
vendee ;  and,  as  he  actually  enjoyed  the  issues  and  profits 
during  the  whole  time,  and  by  the  result  became  exempted 
from  all  liability  for  them  to  the  Commonwealth,  that  sup- 
posed legal  seizin  of  the  Commonwealth  forms  no  excuse  to 
the  vendee  for  not  paying  interest  to  the  vendor.' 

11.  Agreement  for  the  purchase  of  land,  the  vendee  to 
take  possession  immediately,  and  the  vendor,  "  when  thereto 
requested,"  to  deliver  a  deed,  upon  the  receipt  of  which,  the 
vendee  was  to  give  three  notes,  payable  in  one,  two,  and 
three  years.  The  vendee  took  possession  immediately,  but 
the  vendor  died  without  giving  a  deed  or  receiving  the  notes. 
Held,  upon  a  bill  by  the  vendee  for  specific  execution,  he 
should  pay  interest  on  the  instalments  of  the  purchase- 
money,  as  if  the  notes  had  been  given  in  a  reasonable  time 
after  the  date  of  the  agreement.^ 

12.  In  a  contract  of  sale,  if  no  day  be  specified  for  de- 
livering the  deed  and  possession,  but  the  money  be  payable 
after  delivery  of  the  deed ;  the  deed  is  to  be  delivered,  and 
possession  given,  without  delay.  If,  therefore,  in  conse- 
quence of  a  misunderstanding,  this  be  not  done,  the  vendor 
is  bound  to  account  for  the  profits  received  by  him  after  the 

1  Seklcn  v.  James,  6  Rand.  465.  2  McKay  v.  Melvin,  1  Ired.  Eq.  73. 


CII.  XXXVI.]      INTEREST,    RENTS    AND    PROFITS,   ETC.  147 

contract ;  and  the  vendee  to  pay  interest  on  the  money,  from 
the  time  when  it  would  have  been  payable,  if  the  deed  had 
been  immediately  delivered.^ 

13.  A  purchaser,  when  an  incumbrance  has  been  con- 
cealed from  him,  may  require  a  prompt  removal  of  it ;  other- 
wise, he  is  entitled  to  a  rescission  of  the  contract,  and  may 
abandon  the  possession,  unless  he  chooses  to  retain  it  as  a 
trust  fund  to  reimburse  himself  for  money  paid.  And  the 
effect  of  retaining  possession,  until  a  decree  for  rescission, 
will  be  only  to  charge  the  purchaser  with  interest  on  the 
purchase-money,  if  the  possession  is  of  any  value.^ 

14.  It  seems,  that  the  purchaser  of  an  estate,  the  value  of 
which  is  increased  by  the  wearing  of  lives,  may  be  called 
upon  to  pay  interest  on  the  purchase-money,  in  respect  of 
that  increased  value,  from  the  time  when  he  becomes  by  law 
entitled  to  receive  the  rents  and  profits.^ 

15.  The  contract  of  sale  and  purchase  being  often  accom- 
panied by  a  deposit  of  a  portion  of  the  purchase-money ;  the 
purchaser  as  well  as  vendor  may  make  a  claim  for  interest. 
Thus  it  is  held,  that  a  purchaser  is  entitled  to  interest  on  his 
deposit,  and  to  costs  at  law  and  in  equity,  until  the  vendor 
has  made  his  title  good.  But  the  vendor  is  entitled  to  sub- 
sequent costs,  and  may  enforce  the  contract,  if  his  title  be 
good  when  the  report  is  made.^ 

16.  On  a  motion  by  a  vendor  against  a  vendee  in  posses- 
sion, for  a  reference  to  set  an  occupation  rent,  the  title  not 
being  completed,  an  order  was  accordingly  made,  and  that 
interest  at  £4  per  cent,  upon  the  deposit  should,  under  the 
circumstances,  be  deducted  out  of  such  rents.^  The  Vice- 
Chancellor  remarked:^  "A  deposit  is  peculiarly  circum- 
stanced. If  the  auctioneer  pays  it  to  the  vendor,  he  does  it 
at  his  peril ;  and  if  the  purchase  is  not  completed,  the  pur- 
chaser may   recover  it  from  the  auctioneer.      If   then  the 

'  Hundley  i'.  Lyons,  5  Munf.  3-12.  *  Pincke  v.  Curteis,  4  Bro.  329. 

-  Cullum  V.  Bank,  4  Ala.  22.  &  Smith  v.  Jackson,  1  Madd.  618. 

3  Champernownc   v.  Brooke,  3  Cla.  ^  lb.  620. 
&  Fin.  4;  3  You.  &  Coll.  510. 


148  h.WV    OF    VENDORS   AND    PUllUHASERS.        [cil.  XXXVI. 

auctioneer  cannot  pay  over  tlie  deposit  to  the  vendor,  is  he 
to  be  considered  as  his  agent  ?  The  vendor  is  responsible 
for  the  loss,  if  any,  occasioned  by  the  auctioneer.  The  ven- 
dor should  be  chargeable  witii  any  loss  of  the  deposit  received 
by  the  auctioneer,  because  he  might,  by  agreement  with  the 
auctioneer,  have  had  the  money  laid  out  at  interest,  or  by 
making  the  auctioneer  a  party  to  a  bill  for  a  specific  per- 
formance against  the  vendee,  obtain  an  order  for  payment  of 
the  deposit  into  Court,  and  have  laid  it  out  at  interest,  which 
the  vendee  could  not  oblige  the  auctioneer  to  do,  unless  with 
the  consent  of  the  vendor.  If,  therefore,  the  vendor  takes  no 
such  steps  and  the  deposit  is  lost,  the  loss  falls  upon  the 
vendor.  The  deposit  is  considered  as  part-payment  of  the 
purchase-money.  Is  it  justice,  then,  that  the  vendee,  having 
thus  paid  part  of  his  purchase-money,  should  not  have  an 
allowance  for  it,  in  settling  what  is  to  be  paid  as  an  occupa- 
tion rent  ?  If  the  contract  is  completed,  the  vendor  receives 
the  deposit,  with  interest ;  if  it  is  not  completed,  the  pur- 
chaser may  certainly  bring  an  action  for  the  deposit  and 
interest,  though  some  doubts  have  been  entertained  as  to  the 
form  of  the  action.^  The  conditions  of  sale  were,  not  that 
the  deposit  should  be  paid  to  the  auctioneer,  but  that  the 
vendee  should  '  pay  down  immediately  a  deposit  of  15  per 
cent,  in  part  of  the  purchase-money.'  It  was  therefore  con- 
sidered on  both  sides,  that  the  deposit  was  a  part  payment 
of  the  purchase-money  to  an  agent  of  the  plaintiff."  ^ 

17.  Where  a  conveyance  is  set  aside  for  gross  misrepre- 
sentations and  deceit,  the  ground  of  the  decision  must  be 
considered  to  have  been  fraud,  and  interest  is  to  be  paid  on 
the  money  refunded,  without  reference  to  any  demand,  from 
the  time  it  was  received,  and  interest  on  interest  from  the 
time  of  its  payment  on  any  of  the  notes  originally  given. 
Woodbury,  J.,  says  :   "  Where  contracts  are  rescinded  for 

1  See  Burrough  v.  Skyiiner,  5  Burr.         '■^  Smith   v.  Jackson,   1    Madd.  618, 
2639  ;  iMaberley  v.  Robbins,  5  Taunt.     620. 
625  ;  Ambrose  o.  Ambrose,  1  Cox,  194  ; 
Doyley  v.  Powis,  lb.  206. 


CH.  XXXVI.]       INTEREST,   RENTS   AND    PROFITS,   ETC.  149 

mere  mistakes,  and  the  property  sold  was  taken  possession 
of  by  the  vendee,  and  yielded  a  regular  income,  it  has  often 
been  the  practice  to  set  off  the  income  against  the  interest, 
and  to  go  into  no  computations  about  either,  till  possession 
of  the  premises  was  given  up.  Such  a  rule  is  often  more 
convenient  and  easy  than  just,  and  could  never  be  equitable 
unless  the  property  yielded  a  certain  and  considerable  in- 
come. Where  interest  has  in  any  such  cases  been  given,  it 
usually  does  not  begin  till  a  demand  is  made  to  refund  the 
consideration.  But  here  the  original  bill  charges  a  fraud  in 
the  contract  of  sale,  as  one  ground  for  rescinding  it.  The 
opinion  of  the  Court  on  that  bill  was,  '  that  the  contract 
ought  to  be  set  aside,  as  founded  in  gross  mistake,  and  gross 
misrepresentation.'  The  usual  incidents  to  such  a  decision 
must  be  attached  to  it.  One  of  them  is,  that  no  demand  is 
necessary  to  obtain  interest.  But,  on  the  contrary,  the  taking 
of  the  money  being  wrong  and  fraudulent  in  law,  the  law 
will  grant  interest  upon  it  from  the  time  it  is  so  taken.  It 
seems  to  me  more  just  and  equal  for  the  parties,  that  in  all 
cases  of  rescinded  contracts,  interest  must  be  allowed  on  the 
money  paid  from  the  time  of  payment  till  the  judgment; 
and  on  the  other  hand,  the  party  occupying  the  land  be 
charged  with  rents  and  profits  during  the  possession,  deduct- 
ing taxes  and  the  cost  of  any  permanent  improvements 
made.  Because  in  some  cases  the  rents  are  little  or  nothing, 
and  in  others  more  than  the  interest.  In  respect  to  the  sums 
or  amounts,  on  which  interest  is  to  be  cast,  if  the  bargain 
had  been  to  pay  a  particular  sum  in  money  for  the  whole 
consideration,  and  notes  had  been  voluntarily  taken  in  part 
as  a  substitute,  it  would  seem  to  me  proper  to  cast  interest 
on  all  as  if  money.  The  interest  then  would  be  from  the 
time  of  the  making  of  the  contract,  the  execution  of  it,  to 
the  time  of  final  judgment  on  the  whole  consideration,  and 
nothing  more.  But  as  a  part  only  of  the  consideration  was 
to  be  paid  at  the  time  in  money,  and  the  rest  on  credit,  I  am 
inclined  to  think  the  interest  should  be  computed  according 

13* 


150  LAW    OF    VENDORS   AND    PURCHASERS.        [Cll.  XXXVI. 

to  the  truth  of  the  transaction,  and  hence  should  be  cast  on 
the  different  sums  paid  from  the  times  actually  paid,  whether 
as  principal  or  interest,  until  the  time  of  the  final  judg- 
ment." 1 

18.  The  general  rule,  however,  by  which  a  vendee  is  re- 
quired to  pay  interest,  is  subject  to  exceptions  depending  on 
the  circumstances  of  the  case. 

19.  Thus,  in  Blount  v.  Blount,^  Lord  Hardwicke  declared, 
that,  as  no  possession  was  delivered  to  the  purchaser  by 
virtue  of  his  purchase,  and  it  was  not  his  default  at  all  that 
the  conveyances  had  not  been  made,  there  was  no  pretence 
for  making  him  pay  interest.  The  purchaser  was  in  posses- 
sion before  making  the  purchase.  Lord  Hardwicke  also 
says,  that  it  cannot  be  laid  down  in  certain,  that  from  the 
time  of  possession  a  purchaser  shall  always  pay  interest, 
whether  the  estates  are  in  possession  or  in  reversion  ;  whether 
purchased  under  a  private  agreement,  or  under  a  decree  for 
a  sale.  As  to  estates  in  possession  upon  a  private  purchase, 
the  Court  never  regards  execution  of  articles  for  purchase, 
but  the  time  of  the  execution  of  conveyances,  and  even 
there,  if  the  vendor  has  made  default  in  letting  the  vendee 
into  possession,  he  shall  not  pay  interest  for  the  purchase- 
money  ;  but  if  he  has  taken  possession,  the  Court  will  give 
such  interest  as  is  agreeable  to  the  nature  of  the  land  pur- 
chased. In  biddings  before  masters,  they  are  made  general, 
and  the  Court  discourages  any  particular  terms  to  be  put 
upon  those  biddings.  If  the  purchaser  has  not  had  posses- 
sion upon  execution  of  conveyances,  he  shall  not  pay  in- 
terest at  all ;  from  the  time  of  delivery  of  possession,  he 
shall.  Lord  Hardwicke  further  remarks :  "  As  to  what  has 
been  said  of  the  advantage  a  purchaser  receives  from  wear- 
ing out  of  lives,  I  never  knew  the  Court  take  this  into  their 
consideration  as  a  reason  for  the  purchaser's  paying  interest." 
So,  in   Paton  v.  Rogers,^  the  Vice- Chancellor  said  that  a 

■■  Doggett  V.  Emerson,   1  Woodb.  &  ^  3  Atk.  636.  ^ 

M.  195,  204.  3  6Madd.256.  ^ 


CH.  XXXVI.]       INTEREST,   RENTS   AND    PROFITS,   ETC.  151 

decree  for  interest  from  the  time  when  the  money  was  to  be 
paid,  was  generally  made ;  but  not  where  the  vendor  has 
improperly  delayed  the  execution  of  the  contract.  So,  in 
Esdaile  v.  Stephenson,^  Sir  John  Leach,  V.  C,  held,  that 
where  there  was  no  express  stipulation  to  pay  interest,  and 
the  delay  in  completing  the  contract  was  occasioned  by  the 
vendor ;  if  the  interest  much  exceeds  the  rents  and  profits, 
the  Court  gives  the  vendor  no  interest,  but  leaves  him  in 
possession  of  the  intermediate  rents  and  profits. 

20.  So,  although  a  purchaser,  who  takes  possession  and 
remains  in  the  uninterrupted  enjoyment  of  it,  or  who  re- 
ceives the  rents  and  profits,  must  pay  interest ;  yet,  where  it 
is  discovered  that  the  titles  are  defective,  and  the  purchaser 
offers  to  rescind  on  receiving  his  money ;  or  deposits  the 
purchase-money,  with  notice  to  the  vendor,  till  titles  are 
made;  he  is  not  bound  to  pay  interest.^  Colcock,  J.,  says  : 
"  It  is  a  rule  founded  on  the  purest  principles  of  equity  and 
justice.  It  does  not  always  happen  that  men  make  judicious 
bargains,  but,  generally  speaking,  a  Court  may  well  presume 
that  the  use  of  property  is  worth  the  interest  of  the  money. 
At  all  events,  it  is  a  fair  presumption,  where  nothing  to  the 
contrary  appears.  And  in  cases  where  it  becomes  necessary 
to  allow  compensation  for  the  use  of  property,  in  the  absence 
of  evidence,  the  value  which  the  purchaser  has  put  on  the 
property  must  be  considered  the  most  correct  guide  for  the 
Court."  But  he  proceeds  to  qualify  the  rule  as  above 
stated.^ 

21.  It  was  agreed,  that  A.  advance  B.  £4,000  on  a  mort- 
gage, and,  within  one  week  from  the  agreement,  B.  deliver 
to  A.  or  his  solicitor  a  complete  abstract  of  the  title,  produce 
the  title-deeds,  and  deduce  and  show  a  good  marketable  title 
within  one  month  after  delivery  of  the  abstract ;  otherwise 

M  S.  &  S.  122.    See  Monck  v.  Hus-     Martin,  1  Bibb,  586;    Hart  v.  Brand, 
kisson,  4   Russ.   122,   n.  a;   Jones  v.     1  A.  K.  Mar.  159. 
Mudd,  4  Russ.  118;  Birdsall  v.  Wal-         ^  Blount  v.  Blount,  3  Atk.  6.36. 
dron,    2    Edw.   Ch.   315;   January  v.        ^  Rutledge  v.  Smith,  1  M'Cord,  Ch. 

403. 


152  LAW    OP    VENDOllS   AND   PURCHASERS.       [CII.  XXXVI. 

it  was  to  be  at  A.'s  option  to  consider  the  agreement  void. 
It  was  further  provided,  that  B.  should  forthwith  pay  to  A. 
all  costs  and  charges  of  investigating  the  title,  &c.  Abstracts 
of  title  were  delivered  soon  after  the  agreement,  but  found 
defective.  From  the  day  when  the  title  ought  to  have  been 
completed,  for  about  eight  months,  negotiations  were  going 
on,  A.  objecting  to  the  title,  and  informing  B.  that  his  money 
had,  during  the  whole  interval,  been  lying  idle,  and  B.  en- 
deavoring to  amend  his  title,  when  he  finally  failed  to  do  so, 
and  the  negotiation  ended.  A.  was  to  recover  the  amount 
of  costs  and  charges  incurred  by  him  in  investigating  the 
title,  and  interest  on  the  j£4,000,  which  had  been  thus  lying 
idle.  Held,  he  could  not  recover  the  interest.  Bayley,  B., 
says :  "  The  words  '  all  costs  and  charges  incurred  by  him  in 
investigating  the  title,'  mean  only  what  are  incurred  in  so 
doing,  and  it  is  impossible  to  say  that  those  words  are  suf- 
ficiently extensive  to  cover  the  interest  of  money  lying  by 
during  the  time  the  parties  were  in  treaty.  In  what  situa- 
tion was  the  plaintiff?  His  money  was  lying  at  his  banker's, 
and  he  might  have  made  a  bargain  that,  unless  the  agree- 
ment was  carried  into  effect,  then  the  loss  of  interest  should 
be  paid  and  borne  by  the  other  party."  ^ 

22.  A  vendee  agreed  to  pay  one  half  of  the  purchase- 
money  in  hand,  as  soon  as  the  vendor  made  him  a  title,  and 
the  remaining  half  in  three  equal  annual  payments,  the 
vendee  to  have  immediate  possession.  Held,  the  one  half 
of  the  purchase-money  was  not  due,  nor  did  interest  upon  it 
accrue  until  the  title  was  made,  and  the  remaining  half  be- 
came due  in  annual  payments  thereafter.  Rogers,  J.,  says  : 
"  Until  tender  of  title,  the  vendor  is  not  entitled  to  payment 
of  the  purchase-money;  and  it  is  a  general  principle,  that 
interest  is  not  demandable  of  right,  until  the  debt  is  due, 
except  in  pursuance  of  the  terms  of  an  express  contract ; 
and  no  contract  is  here  alleged.  But  the  argument  is,  that 
the  vendee  took  possession,  and  as  he  enjoys  the  profits,  he 

^  Sweetlaud  v.  Smith,  1   Crompt.  &  Mees.  585. 


CH.  XXXVI.]       INTEREST,   RENTS   AND    PROFITS,    ETC.  153 

ought  to  pay  interest.  And  this  is  ti-ue  in  ordinary  cases, 
where  a  time  is  fixed  for  the  payment  of  the  purchase- 
money  ;  but  the  right  to  take  immediate  possession  was  part 
of  the  contract,  and  the  vendee's  having  taken  the  possession 
cannot  affect  the  construction  of  that  clause  in  the  agree- 
ment on  which  the  debt  is  only  recoverable  after  a  clear  title 
is  made.  A  different  construction  would  render  the  vendor 
careless  of  obtaining  and  tendering  a  title,  as  he  would  be 
sure  of  legal  interest,  from  the  time  the  vendee  took  posses- 
sion." ^ 

23.  It  is  held  in  New  York,  that,  where  payment  is  to 
be  made  on  the  conveyance  of  land  at  a  stipulated  period, 
and  the  land  is  not  then  conveyed,  the  purchaser  is  not  in 
default,  if  he  omits  to  pay  the  price,  and  no  interest  is  re- 
coverable against  him,  until  he  is  put  in  default  by  the 
tender  of  a  deed.  The  general  rule  in  England  is,  that, 
from  the  time  fixed  for  completion  of  a  sale  and  convey- 
ance, the  purchaser  is  entitled  to  the  profits,  and  will  be 
compelled  to  pay  interest.  The  latter  is  implied  from  the 
former.  This  rule  is  modified  here,  by  the  difference  in 
the  situation  and  productiveness  of  real  estate,  and  the 
higher  rate  of  interest ;  and,  in  the  case  of  vacant  or  un- 
productive property,  a  contract  to  pay  interest  will  not  be 
implied,  when  the  purchaser  is  prevented  from  obtaining  his 
title  through  the  default  or  negligence  of  the  vendor,  not- 
withstanding possession  by  the  vendee.  So,  where  he  does 
not  go  into  possession  under  or  in  pursuance  of  the  contract, 
and  the  delay  in  its  completion  is  imputable  to  the  seller. 
Thus  the  plaintiff  and  defendant,  being  joint  owners  in  pos- 
session of  several  lots,  under  a  lease  which  contained  a  cove- 
nant for  a  sale  and  conveyance  to  the  lessees  at  their  option, 
at  a  fixed  price,  tendered  the  price  to  the  lessor's  heirs  and 
representatives,  and  demanded  the  title  ;  but  the  latter,  by 
reason  of  infancy  and  other  causes,  were  long  unable  to  con- 
vey.    The  plaintiff  then  signed  an  agreement,  by  which  he 

1  M'Kennan  v.  Sterrett,  6  Watts,  162,  163. 


15-1  LAW    OF    VENDORS   AND    PURCHASERS.       [cil.  XXXVI. 

covenanted  to  execute  a  perfect  conveyance  to  the  defendant 
of  all  his  right  and  interest  in  one  of  the  lots  (which  was 
vacant,)  on  the  1st  of  May,  1830,  in  consideration  of  a  large 
price  to  be  then  paid  or  secured  by  the  defendant,  and,  when 
the  legal  title  was  obtained,  he  would  give  any  further  as- 
surance, &c.  The  plaintiff  made  no  effort  to  complete,  or  to 
convey  his  own  interest  to  the  defendant,  at  or  before  the  day 
fixed ;  and,  early  in  1831,  he  repudiated  the  agreement,  denied 
its  obligation,  and  disclaimed  the  defendant  as  being  the  pur- 
chaser. Tlie  defendant  nevertheless  proceeded  and  erected 
a  valuable  store  on  the  lot,  the  income  from  which  exceeded 
the  whole  cost  of  both  store  and  lot ;  and  at  the  same  time 
he  made  similar  erections  on  the  joint  account  on  the  other 
lots  of  himself  and  the  plaintiff.  In  1836,  the  plaintifi'  filed 
a  bill,  amongst  other  things,  calling  on  the  defendant  to 
complete  the  purchase  of  the  lot,  and  a  conveyance  was 
finally  in  readiness  for  the  defendant  in  1841.  Held,  that 
the  defendant  did  not  take  possession  under  his  contract 
with  the  plaintiff,  and  the  character  of  his  previous  posses- 
sion was  not  changed  ;  that  the  plaintiff  was  not  entitled  to 
interest  on  the  stipulated  price  from  May  1,  1830,  nor  until 
he  made  or  offered  a  full  conveyance  of  his  right  and  title  in 
the  lot ;  but  he  was  entitled  to  the  value  of  the  rents  in  the 
intervening  period,  as  the  same  would  have  been  derived 
from  the  lot,  in  the  condition  in  which  it  was  when  he  con- 
tracted to  sell  to  the  defendant.  The  Court  say  :  "  In 
the  case  of  a  vacant  city  lot,  or  of  wild  land,  not  bought  for 
immediate  improvement  or  cultivation,  and  where  there  is 
no  express  contract  for  interest,  it  would  be  repugnant  to  the 
moral  sense  to  compel  the  purchaser  to  pay  interest  on  the 
price,  when  through  the  default  or  negligence  of  the  vendor, 
he  had  not  received  a  conveyance,  and  thus  had  been  pre- 
vented for  years  from  disposing  of  the  property.  Nor  would 
the  fact  that  the  former  had  taken  all  the  possession  that  he 
could  of  such  property,  and  had  not  kept  the  money  by  him 
all  the  time  in  order  to  pay  it  on  receiving  the  title,  affect 


CIT.  XXXVI.]       INTEREST,    RENTS    AND    PROFITS,    ETC.  155 

the  natural  equity  of  the  case.  Yet  by  the  modern  English 
rule,  he  would  be  charged  with  interest  under  such  circum- 
stances." ^ 

24.  Although  aVendee,  who  enters  and  continues  in  pos-* 
session,  must  pay  interest ;  yet,  where  he  has  been  harassed 
or  disturbed  in  his  possession,  or  there  has  been  wilful  and 
vexatious  delay,  or  gross  or  criminal  laches,  on  the  part  of 
the  vendor ;  or  where  there  are  well-founded  doubts  of  the 
title,  or,  from  neglect  or  otherwise  for  a  length  of  time,  no 
administrator  of  the  deceased  vendor  has  been  appointed,  to 
receive  payment ;  it  is  for  the  jury  to  determine,  whether  the 
vendee  is  to  pay  interest.  Rogers,  J.,  says  :  "  It  is  settled,  as 
is  said,  in  Fashott  v.  Reed,^  that  a  purchaser  by  articles, 
entering  and  continuing  in  possession,  must  pay  interest, 
although  there  may  be  cases  where  the  jury  would  be  justi- 
fied in  refusing  it.  The  doubt  is,  whether  there  were  not 
such  facts  in  evidence  as  made  it  the  duty  of  the  Court  to 
leave  the  question  of  interest,  as  an  open  question,  to  be 
determined  by  the  jury.  The  interest  is  given  by  way  of 
damages,  and  all  the  facts  should  be  considered  by  the  jury, 
under  the  direction  of  the  Court."  ^ 

25.  It  being  a  general  rule  of  equity,  that  a  purchaser  in 
possession,  receiving  the  rents,  is  liable  to  pay  the  purchase- 
money  and  interest;  an  agreement  which  appears  to  prevent 
the  application  of  this  rule  will  be  examined  in  a  Court  of 
Equity,  by  its  aid,  and  will  or  will  not  be  enforced,  accord- 
ing to  circumstances.  Thus  the  plaintiff,  in  March,  1812, 
contracted  for  the  purchase  of  an  estate  from  the  defendant 
for  £90,000.  The  estate  was  very  much  incumbered,  and 
the  defendant  was  to  make  a  title  free  from  all  incumbrances 
except  one  mortgage  of  <£  12,000.  The  plaintiff,  on  being 
put  into  possession  of  part  of  the  estates,  was  to  pay  .£16,000 
on  the  24th  of  June,  1812,  "  and  a  further  sum  of  £4,000  at 
Michaelmas  next,  on  the  defendant  putting  the  plaintiff  into 


'  Stevenson  v.  Maxwell,  2  Sandf.  Ch.         ^  jg  s.  &  R.  266. 
273,  278.  3  Kester  v.  Eockel,  2  W.  &  S.  365. 


loG  LAW    OF   VENDORS    AND    PURCHASERS.        fcil.  XXXVI. 

the  actual  possession  of  the  remainder,  free  from  all  incum- 
brances, except  the  mortgage  for  .£12,000;  the  further  sum 
of  £25,000  in  March,  1813 ;  £16,r)00  in  March,  1816  ;  and 
^£16,500  in  March,  1818."  The  i)laintiffwas  to  grant  the 
defendant  a  mortgage  of  all  the  estates,  for  securing  these 
three  sums  at  the  respective  times  aforesaid,  "  with  legal 
interest  from  Michaelmas  next."  The  X20,000  not  having 
been  paid,  nor  any  of  the  incumbrances  cleared  off,  a  new 
agreement  was  entered  into  in  October,  1812.  The  plaintiff 
was  forthwith  to  advance  £10,000  to  pay  off  certain  incum- 
brances ;  to  be  let  into  immediate  possession  ;  to  be  entitled 
to  the  rents  and  profits  "  from  Michaelmas  last,"  and  to  be 
at  liberty  to  cut  timber,  &c.  The  conveyances  were  to  be 
executed  as  soon  as  existing  difficulties  could  be  removed, 
and  every  possible  exertion  made  to  that  end.  It  was  fur- 
ther agreed,  that  "  the  interest  of  the  remainder  of  the  pur- 
chase money  shall  not  commence  till  Lady-day  next,  in  case 
the  title  shall  be  perfected,  and  the  conveyances  and  other 
assurances  executed  at  that  time,  and  if  not,  then  to  com- 
mence on  the  execution  of  such  assurances."  The  plaintiff 
was  let  into  possession,  but  the  business  was  not  com- 
pleted. In  a  suit  by  the  plaintiff  for  specific  performance, 
an  account  was  directed ;  and  it  was  held,  that,  under  the 
clause  in  the  second  agreement,  exempting  "  the  remainder 
of  the  purchase-money  "  from  the  payment  of  interest,  the 
sum  remaining  unpaid  of  the  .£20,000  and  the  three  sums 
constituting  the  £58,000,  must  be  taken  to  come  under  that 
description.^ 

26,  With  regard  to  the  claim  of  the  vendee  for  interest,  it 
is  held,  that  a  party  recovering  back  a  deposit,  paid  on  the 
purchase  of  real  property,  is  not  entitled  to  interest,  ^(a) 

'  Birch  V.  Joy,  18  Eng.  L.  &  Eq.  16.        2  Bradshaw  v.  Bennett,  5  C.  &  P.  48. 

(a)  The  effect  of  a  deposit,  with  notice  to  the  vendor,  is  to  stop,  or  deter- 
mine the  rate  of  interest.  It  is  not  a  tender  and  appropriation,  transferring 
the  risk  as  to  the  principal.  Therefore,  upon  an  investment  in  stock  by  the 
vendee,  the  title  not  being  ready,  and  the  vendor  having  notice,  but  return- 


CH.    XXXVI.]      INTEREST,    RENTS    AND   PROFITS,   ETC.  157 

27.  The  amount  of  damages  to  be  awarded  between  ven- 
dor and  vendee  may  be  affected  by  the  value  of  improve- 
ments, made  by  the  party  in  possession  under  the  contract ; 
which  amount  shall  ^e  deducted  from  the  rents  and  profits.^ 
Thus  a  vendee  in  possession  under  a  title  bond,  obtaining 
judgment  on  the  bond  against  the  vendor  for  failure  to  con- 
vey, is  liable  for  rents  and  profits,  and  entitled  to  payment 
for  lasting  and  valuable  improvements.^  So,  where  a  sale 
is  within  the  Statute  of  Frauds,  the  improvements  by 
the  purchaser  must  be  paid  for  before  possession  is  given, 
deducting  rent,  &c.^ 

28.  If  a  vendee  receive  payment  for  improvements  on 
eviction,  and  afterwards  the  vendor  establish  his  title  to  be 
paramount,  the  vendee  may  be  compelled  to  refund  to  the 
evictor.  On  the  other  hand,  if  the  vendor,  on  the  eviction  of 
the  vendee,  has  refunded  the  consideration  and  interest,  the 
vendee  is  responsible  for  rents,  but  must  be  paid  for  perma- 
nent and  valuable  improvements.^  So  one  who  is  permitted 
to  enjoy  aii  estate,  and  makes  improvements  during  his 
occupancy,  is  in  equity  entitled  to  remuneration  for  the  im- 
provements. And  a  purchaser  from  him  is  also  entitled  to 
have  his  improvements  set  off  against  the  rents.^  So,  on 
setting  aside  a  sheriff's  sale  of  lands,  and  ordering  possession 
to  be  restored,  the  purchaser  should  account  for  rents  from 
the  time  he  took  possession,  to  be  reduced  from  improve- 
ments.^    So,  where  a  title  is  fraudulent,  equity,  in  giving 

1  See  Watts  v.  Waddle,  6  Pet.  389.  *  Morton  v.  Ridgeway,  3  ^T.  J.  Marsh. 

2  Funk  V.  M'Keoun,  4  J.  J.  Marsh.     257. 

170;    Ace.    Stedwell  v.  Anderson,  21         ^  Thompson  i'.  Mason,  4  Bibb.  195. 
Conn.  139.  ^  gearcy  v.  Reardon,  1  A.  K.  Marsh.  2. 

3  M'Cracken  v.  Sanders,  4  Bibb.  511. 

ing  no  answer,  the  advantage  by  a  rise,  as  the  loss  by  the  fall,  is  the  vendee's. 
Roberts  v.  Massey,  13  Ves.  561. 

The  deposit  made  upon  opening  a  bidding  is  considered  as  part  of  the 
purchase-money,  although  in  case  the  depositor  is  not  the  best  bidder,  it 
must  be  returned  to  him.  Therefore,  where  the  deposit  is  laid  out  in  the 
public  funds,  which  rise  before  the  purchase  is  completed,  the  estate  will 
have  the  benefit  of  the  rise.  Ambrose  v.  Ambrose,  1  Cox,  194. 
VOL.  II.  14 


* 
158  LAW    OF    VENDOllS    AND    PURCHASERS.        [CII.  XXXVI. 

relief,  will  reimburse  the  party  in  possession,  for  permanent 
improvements.^ 

29.  It  has  been  held,  that  a  purchaser,  evicted  or  released 
by  the  vendor  for  defective  title,  shall  ]jc  reimbursed  for  act- 
ual improvements,  although  he  purchased  with  notice  of  a 
doubtful  title.  The  Court  remark  :  "  The  objections  made 
were,  that  the  purchaser  knew,  at  the  time  of  the  purchase, 
there  was  a  doubt  about  the  title,  arrd  therefore  ought  not  to 
have  made  any  improvements ;  and  that  the  improvements 
were  chiefly  ornamental,  and  not  substantial  and  permanent. 
The  first  objection  goes  rather  to  any  reimbursement  at  all, 
even  for  the  price  paid.  That  objection  turns  upon  the 
ground,  that  if  the  purchaser,  before  executing  the  articles, 
knew  that  there  was  a  defect  of  title,  or  incumbrances,  he 
shall  be  considered  as  having  entered  into  the  contract  with 
his  eyes  open,  and  has  chosen  his  remedy  at  law,  and  equity 
will  not  assist  him,  but  leave  him  to  his  remedy  at  law.  But 
that  point  cannot  now  be  made  here,  for  it  is  agreed  that  the 
purchase  ought  to  be  and  shall  be  rescinded,  and  that  the 
purchase-money  shall  be  restored,  but  without  interest,  as 
the  occupancy  was  equivalent  to  the  interest ;  and  this  agree- 
ment seems  best  to  comport  with  justice;  for  there  are  very 
few  cases  in  which  the  Court  will  not,  upon  a  defect  of  title, 
assist  the  purchaser  to  recover  the  purchase-money,  and  also 
money  laid  out  in  lasting  improvements.  Where,  indeed, 
the  defect  was  notorious,  and  the  purchaser  bought  on  a 
speculation,  and  obtained  the  property  at  a  price  far  below 
the  value,  on  account  of  the  known  defect,  it  seems  reason- 
able that  he  shall  not  afterwards  claim  a  reimbursement 
even  of  the  purchase-money.  But  nothing  of  that  kind 
appears  to  have  existed  here.  It  is  not  pretended  that  the 
defect  was  notorious,  and  that  the  property  was  obtained 
below  the  value  on  account  of  that  defect,  and  on  account 
of  his  running  the  risk  of  the  title."  It  being  objected  that 
the  improvements  were  merely  ornamental,  the  Court  further 

'  Shine  v.  Gough,  1  Ball  &  B.  444. 


CH.    XXXVI.]  INTEREST,    RENTS    AND    PROFITS,    ETC.  159 

ordered,  that  it  be  "  referred  to  the  Master  to  examine  and 
report  what  were  the  expenditures  for  the  useful  improve- 
ments in  question,  making  deductions  for  the  deterioration 
of  the  buildings  during  the  occupancy  of  the  party  who 
made  the  improvements,  and  down  to  the  time  of  the  rescis- 
sion of  the  contract.  The  Master  afterwards  made  a  report 
in  favor  of  the  complainants,  which  was  confirmed." ' 

'  Witherspoon  v.  Anderson,  .3  Desaus.  245,  246. 


IGO  LAW    OF    VENDORS    AND    PURCHASERS.      [('II.  XXXVII. 


CHAPTER   XXXVII. 


COSTS. 


1.  Having  considered  the  subjects  of  damag-es  andinterest, 
to  be  recovered  by  the  vendor  or  vendee  of  real  property,  we 
proceed  to  inquire  as  to  the  costs  of  suits  brought  by  these 
respective  parties,  the  one  against  the  other.  The  question 
arises  ahiiost  exclusively  in  Courts  of  Equity,  where  costs  are 
within  the  discretion  of  the  Court,  and  not^  as  for  the  most 
part  at  law,  absolutely  dependent  upon  the  result  of  the  suit. 
Thus  it  is  held,  that  costs  in  equity  are  in  the  discretion  of 
the  Court,  upon  the  circumstances  ;  not  following  the  event 
by  a  positive  rule,  as  at  law,  though  prima  facie  that  is  the 
course,  and  the  opposing  circumstances  must  be  brought 
forward  by  the  party  who  fails.  The  answer  will  be  consid- 
ered in  settling  the  question  of  costs.^(a) 

'  Vancouver  v.  Bliss,  1 1  Ves.  458. 

(a)  Upon  this  subject  Lord  Eldon  remarks,  (11  Ves.  461)  :  "  It  would 
be  a  most  satisfactory  doctrine,  if  I  was  at  liberty  to  say,  that  in  any  species 
of  suit  the  rule,  that  prevails  universally  at  law,  that  the  costs  shall  abide 
the  event,  was  estabhshed  in  equity  ;  for  frequently  the  most  painful  and 
anxious  duty  of  a  Judge  in  this  Court  is  to  execute  well  the  judgment  as  to 
costs  ;  depending  more  upon  discretion  than  the  merits  ;  with  reference  to 
which  the  rules  of  law  and  the  principles  of  equity  guide  you  with  much 
more  certainty.  But  that  has  not  been  so  decided  in  equity,  and  I  should 
be  sorry  to  see  the  rule  of  this  Court  altered ;  from  the  circumstance  of 
making  persons  answer  large  sums  in  costs,  where  the  demand,  which  is  the 
object  of  the  suit,  is  very  small.  As  to  the  question  of  costs  upon  a  suit  in 
equity  for  the  specific  performance  of  an  agreement,  if  there  is  any  rule, 
that  the  person  who  fails  shall  pay  costs,  it  is  new  to  me.  I  think,  in  such 
a  suit  he,  who  fails,  is  prima  facie  to  be  taken  to  be  the  person  liable  to 
costs,  upon  principles  both  of  morality  and  justice  ;  and  those  parties  who 


CH.  XXXVII.]  COSTS.  161 

2.  We  have  already  considered  ( Chaps.  12,  27,)  the  nature 
and  extent  of  the  vendor's  obligation  to  make  a  good  title, 
and  the  right  of  the  vendee  to  object  to  a  title,  as  being 
merely  doubtful,  {a)  In  the  present  connection  it  may  be 
added,  upon  the  same  subject,  that  a  party  will  not  be 
charged  with  expenses  arising  from  objections  made  to  a 
doubtful  title.     Thus  it  is  held,  that  a  purchaser  brought 


depend  upon  circumstances  to  govern  the  discretion  of  the  Court  in  with- 
holding the  costs,  have  it  imposed  upon  them  to  show  the  existence  of  those 
circumstances  in  a  sufficient  degree  to  cut  down  the  prima  facie  claim  of 
costs." 

(a)  In  Marlow  v.  Smith,  2  P.  Wms.  201,  the  Master  of  the  Rolls  says  : 
"  There  being  the  opinion  of  learned  men  against  the  title,  I  will  not,  nor 
do  I  think  it  reasonable  that  a  Court  of  Equity  should  compel  the  purchaser 
to  accept  the  purchase." 

But  in  Vancouver  v.  Bliss,  11  Ves.  464,  Lord  Eldon  expresses  the  follow- 
ing views  upon  the  same  subject:  "In  the  case  of  Shapland  v.  Smith,  (1 
Bro.  75,)  the  single  question  was,  whether  there  was  a  use  executed  or  not ; 
and  the  case  sunk  down  into  this  state  ;  that  with  so  much  difficulty  upon 
the  title  a  purchaser  should  not  be  compelled  to  take  it.  That  case  has  been 
followed  since.  What  is  the  consequence  ?  It  is  scarcely  possible  to  repre- 
sent the  difficulties  that  have  arisen  from  it ;  especially  in  a  period  when 
persons  under  the  description  of  land-jobbers,  are  going  about,  looking  for 
these  things;  and  persons  improvidently  enter  into  contracts  with  them. 
Whenever  a  contract  is  made  for  the  purchase  of  land,  though  no  doubt  has 
ever  been  entertained  upon  the  title,  no  one  thinking  of  disputing  it,  if  the 
purchaser  has  a  good  bargain,  he  overlooks  all  these  objections  ;  bat,  if  he 
finds  he  cannot  sell  the  estate  as  well  as  he  wished,  or  cannot  enjoy  it  to  his 
satisfaction,  the  first  thing  is,  that  the  abstract  goes  to  some  one  for  the 
express  purpose  of  finding  out  objections  and  opinions  are  given  on  both 
sides." 

The  question  of  costs  has  been  made  to  depend  upon  the  general  fairness 
and  honesty  of  the  party  from  whom  they  are  claimed.  Thus,  in  the  case 
of  Davis  V.  Symonds,  (1  Cox,  402,)  Hotham,  Baron,  says:  "If  the  parol 
evidence  is  once  received,  there  is  an  end  of  the  cause ;  for  upon  that  it 
appears  the  plaintiff  is  not  an  honest  man,  and  there  is  consequently  no 
reason  for  us  to  interpose ;  and  if  his  conduct  be  such,  he  must  pay  the 
costs." 

A  vendor  not  making  a  good  title  was  ordered  to  pay  costs,  though  he 
was  only  a  trustee  to  sell.    Edwards  v.  Harvey,  Coop.  40. 
14* 


1G2  LAW    OP    VENDORS   AND    PURCHASERS.     [CII.  XXXVII. 

into  Court  upon  a  doubtful  title  ought  to  be  discharged  with 
costs.  Lord  Redesdale  says  :  "  It  is  sullicient,  on  the  ques- 
tion now  before  the  House,  if  the  law  be  doubtful.  A  pur- 
chaser has  a  right  to  require  a  marketable  title ;  and  this 
title,  it  must  be  admitted,  rests  on  a  point  of  law  which  at 
least,  is  doubtful.  This  being  so,  the  purchaser  who  has 
been  obliged  to  keep  his  money  in  readiness,  and  deprived 
of  the  opportunity  of  vesting  it  in  another  purchase,  has 
been  hardly  used,  and  is  entitled  to  his  costs."  ^  So,  in  the 
case  of  Sloper  v.  Fish,^  Sir  William  Grant,  M.  .R.,  says : 
"  It  has  been  said,  that  every  title  is  good  or  bad ;  and  the 
Court  ought  to  know  nothing  of  a  doubtful  title  ;  but  the 
Court  has  adopted  a  different  principle  of  decision.  It  was 
not  first  introduced  by  Lord  Thurlow,  but  is  at  least  as  old 
as  Sir  Joseph  Jekyll's  time,  and  was  repeatedly  acted  upon 
by  Lord  Hardwicke.  And  accordingly  a  reconveyance 
afterwards  directed,  paying  the  purchaser  all  his  costs." 

3.  If,  after  a  sale,  but  before  the  title  is  accepted,  the  title- 
deeds  be  destroyed  by  fire,  equity  will  not  compel  specific 
performance,  unless  the  vendor  can  furnish  the  means  of 
showing  their  contents,  due  execution  and  delivery.  For 
want  of  such  proof,  a  vendor's  bill  was  dismissed,  with 
costs.^ 

4.  In  an  abstract  of  a  vendor's  title,  a  will  which  formed 
part  of  it  was  wrongly  represented  as  having  been  proved 
in  the  Spiritual  Court.  The  purchaser  fi].ed  his  bill,  praying 
that  the  defendants  might  either  be  decreed  to  prove  the 
will,  or  that  it  might  be  deposited  in  the  hands  of  the  Master 
for  safe  custody.  The  vendors,  having  by  their  misrepresen- 
tations occasioned  the  suit,  were  ordered  to  pay  all  the 
costs.* 

5.  Upon  a  bill  filed  by  a  vendor  for  specific  performance, 
it  appeared  that  he  could  make  a  good  title  before  com- 
mencement of  suit,  but  did  not  show  one  to  the  purchaser 

'  Blosse  V.  Clanraonis,  3  Bligh.  62,         ^  Bryant  v.  Busk,  4  Russ.  1. 
71.  *  Harrison  i».  Coppard,  2  Cox,  318  ; 

2  2  Ves.  &  B.  149.  Sloper  o.  Fish,  2  Ves,  &  B.  145. 


CH.  XXXVII.J  COSTS.  163 

until  afterwards.  Held,  though  specific  performance  must 
be  decreed,  the  purchaser  was  entitled  to  the  costs  of  the 
suit,  generally.'  So  costs  were  allowed  to  a  purchaser  ;  the 
vendor  having  established  his  title  before  the  Master,  after 
contest,  upon  a  different  ground  from  that  in  the  abstract 
delivered.'^  So  it  is  held,  that  a  vendor  seeking  specific  per- 
formance should  have  his  title  prepared,  and  therefore,  where 
the  abstract  delivered  is  imperfect,  he  pays  the  costs  up  to 
the  time  of  supplying  the  defects.  The  Master  of  the  Rolls 
said :  "  I  cannot  say  that  the  defendant  in  this  case  has 
acted  quite  right,  that  he  has  not  taken  some  objections  that 
he  ought  not ;  but  still  I  should  feel  great  difficulty  in  fixing 
him  with  costs.  A  vendor  who  seeks  a  specific  performance 
should  come  prepared  with  his  title  ;  he  ought  to  have  it 
ready  before  he  carries  his  estate  to  market.  If  he  will  sell 
it  with  a  confused  title,  he  must  be  at  the  expense  of  clear- 
ing it.  The  plaintiff  here  comes  into  the  office  with  an 
abstract  undoubtedly  imperfect,  for  it  did  not  state  that  part 
of  the  land  was  copyhold ;  proceedings  then  follow  at  a 
gi-eat  expense,  occasioned  by  the  plaintiff's  neglect.  It  grad- 
ually ripens  into  a  better  title ;  the  time  that  elapsed  during 
the  inquiry  improves  it.  The  deeds  did  not  on  the  face  of 
them  make  out  the  title  as  they  failed  to  identify  the  prem- 
ises. Affidavits  are  then  filed,  which  were  not  originally 
before  the  Master,  and  which  were  not  before  the  defendant 
when  he  first  resisted.  Why  was  not  this  done  before  the 
commencement  of  the  suit,  or  why  was  it  not  provided  for 
in  the  contract?  We  cannot  now  characterize  the  objections 
first  taken  as  frivolous,  and  though  they  have  been  removed, 
it  was  not  by  any  thing  that  was  in  the  defendant's  knowl- 
edge at  the  time  he  put  in  his  answer."*^ 

6.  Where  a  purchaser  is  ready  to  pay,  but  the  vendor 
refuses  to  convey,  the  vendor,  upon  a  decree  for  specific  per- 
formance, shall  be  charged  with  costs.^ 

1  Townsend  v.  Champernowne,  3  Y.  ^  Wilson  v.  Allen,   1  Jac.  &  Walk. 
&  Coll.  50.5.  623. 

2  Fielder  v.  Higginson,  3  Ves.  &  B.  *  Hart  i'.  Brand,  1  A.  K.  Marsh.  159. 
142. 


lG-4  LAW    OF   VENDORS    AND    PURCHASERS.      [CII.  XXXVII. 

7.  So,  if  a  purchaser  attends  at  the  time  and  place  ap- 
pointed for  making  the  conveyance,  and  the  vendor  is  unable 
to  make  a  good  title,  the  vendor  will  be  chargeable  with  the 
costs  of  a  suit  for  specific  performance  subsequently  com- 
menced by  him,  though  he  makes  a  title  at  the  time  of  the 
decree.^ 

8.  A  vendor,  on  delivering  the  deed,  promised  to  procure 
a  release  of  dower ;  but  the  release  was  delayed  till  after  the 
filing  of  a  bill  to  enjoin  collection  of  the  purchase-money. 
Held,  upon  dissolution  of  the  injunction,  no  damages  should 
be  decreed,  but  the  purchaser  was  entitled  to  costs.^ 

9.  Before  completion  of  a  purchase,  the  purchaser  died 
intestate.  A  bill  was  filed  by  the  vendor  against  the  heir 
and  administrator  of  the  vendee,  praying  for  a  resale,  and 
for  the  application  of  the  purchase-money  to  the  payment  of 
the  vendor's  expenses  and  the  sum  agreed  to  be  paid  by  the 
vendee.  Held,  that  the  vendor  was  bound  to  pay  the  costs 
of  the  heir,  with  liberty  to  add  them  to  his  own.^ 

10.  A  purchaser  demurred  to  a  bill  against  him  for  specific 
performance,  and  his  demurrer  was  overruled.  He  then 
asked  for  a  case  to  be  sent  to  a  Court  of  Law,  which  was 
granted ;  and  the  opinion  of  the  Judges  was  also  against 
him.  Ultimately,  however,  the  bill  was  dismissed,  with  costs. 
Held,  he  was  entitled  to  his  costs  at  law,  as  well  as  in 
equity.  "  The  Vice- Chancellor  said  that  neither  party  was 
wrong  in  asking  for  the  opinion  of  a  Court  of  Law  upon  a 
mere  question  of  law ;  and  that  the  costs  of  the  case  were 
part  of  the  costs  of  the  cause,  incurred  with  a  view  to  the 
final  termination  of  the  suit."     Order  appealed  from."* 

11.  Sale  of  land  to  a  railway  company.  The  vendor  died 
before  any  conveyance,  leaving  an  infant  heir  ;  and  the  com- 
pany then  instituted  this  suit,  to  obtain  a  conveyance  from 
the  infant.  Held,  although  the  company  were  bound  by 
their  act  to  pay  the  expenses   of  the  conveyance  of  land 

1  Winne  v.  Reynolds,  6  Paige,  407.  ^  Popple  v.  Henson,  9  Eng.  L.  &  Eq. 

2  M'Koy  V.  Chiles,  5  Moii.  259.  215. 

*  Forbes  v.  Peacock,  12  Sim.  549. 


CH.    XXXVII.]  COSTS.  165 

taken  by  them,  yet,  as  the  vendor  had  occasioned  the  suit  by 
suffering  the  land  to  descend  to  an  infant,  the  costs  of  the 
suit,  and  of  having  the  conveyance  settled  by  the  Master, 
must  be  paid  out  of  the  purchase-money.  The  Vice- Chan- 
cellor said :  "  If  the  defendant's  father,  instead  of  allowing 
the  piece  of  land  to  descend  to  an  infant,  had  taken  only 
the  ordinary  precaution  of  devising  it  either  to  his  executors 
or  to  a  trustee  in  trust  to  convey  it  to  the  plaintiff,  there 
would  have  been  no  occasion  for  instituting  this  suit ;  and 
as  he  has  created  the  necessity  for  the  suit,  by  his  own 
laches,  the  costs  of  it  must  come  out  of  the  purchase-money. 
The  expense  of  the  actual  conveyance  must  be  borne  by 
the  company  ;  but,  if  it  is  necessary  that  it  should  be  settled 
by  the  Master,  the  extra  expense  Occasioned  thereby,  as  well 
as  the  costs  of  the  suit,  must  be  paid  out  of  the  purchase- 
money."  ^ 

12.  Questions  have  often  arisen,  as  to  the  liability  of  a 
vendee  for  costs.^  Thus,  in  case  of  a  bill  filed  by  a  vendor 
for  specific  performance  ;  the  purchaser,  having  ineffectually 
claimed  that  the  contract  had  been  abandoned,  was  ordered 
to  pay  the  costs  of  the  suit  up  to  the  hearing ;  and  the  usual 
reference  made  as  to  title.^  So  specific  performance  was 
decreed,  with  costs,  against  a  purchaser,  without  reference 
as  to  the  title,  upon  possession,  and  no  objection  made  to 
the  abstract.'*  So  upon  possession,  a  correspondence,  and  no 
objection  to  the  title  till  two  years  after  the  abstract  was 
delivered.^ 

13.  A  purchaser  had  been  eight  years  in  possession,  but 
the  vendor  was  unable  to  make  a  good  title,  and  the  pur- 
chaser refused  either  to  abandon  the  agreement  or  accept 
such  title  as  the  vendor  could  give,  but  paid  no  purchase- 
money  or  rent.  The  Com-t,  upon  a  bill  filed  by  the  vendor 
for  relief,  directed  the  agreement  to  be  delivered  up  to  be 

'  Midland,  &c.v.  Westcomb,  11  Sim.        ^  Taylor  v.  Brown,  2  Beav.  280. 
57,  58.  *  Fleetwood  v.  Green,  15  Ves.  594. 

-  See    Nicloson   v.     Wordsworth,   2        ^  Margravine,  &c.  v.  Noel,  1   Madd. 

Swanst.  365.  310. 


160  LAW    OP    VENDORS    AND   PURCHASERS.      [CJl.  XXXVII. 

cancelled,  and  the  rents  and  profits  received  by  the  purchaser 
to  be  accounted  for,  and  ordered  the  purchaser  to  pay  the 
costs.^ 

14.  A  sale  was  to  be  void,  if  the  purchaser's  counsel  should 
be  of  opinion  that  a  marketable  title  could  not  be  made  by 
a  certain  time.  The  counsel  being  of  that  opinion,  a  bill  by 
the  purchaser  for  a  specific  performance,  with  a  compensa- 
tion, was  dismissed  with  costs ;  and  an  application  after- 
wards made  by  the  plaintiff,  that  his  deposit  might  be  set 
off"  against  the  defendant's  costs,  and  the  surplus  (if  any) 
paid  to  him,  was  refused  with  costs.^ 

15.  But  although,  in  general,  possession  of  a  vendee  will 
have  weight  in  favor  of  the  vendor  upon  the  question  of 
costs,  in  case  of  a  bill  by  a  tendor  for  a  specific  performance, 
the  report  being  against  the  title,  the  bill  was  dismissed, 
with  costs,  upon  the  circumstances  of  the  case,  the  purchaser 
having  taken  possession  at  the  instance  of  the  vendor,  repre- 
senting the  title  to  be  perfect.^ 

16.  Where  the  purchaser  objects  to  specific  performance 
upon  other  grounds  than  those  of  title,  and  fails,  and  the 
vendor  does  not  make  out  his  title  until  after  decree ;  the 
purchaser  is  liable  to  the  costs  of  the  vendor's  suit  for  spe- 
cific performance,  except  the  costs  of  making  out  the  title.* 

17.  Where,  on  a  bill  for  exhibition  of  title,  a  deed  is  ten- 
dered and  finally  accepted,  the  party  having  a  right  to  an 
injunction  at  the  time  of  filing  his  bill  should  pay  only  the 
costs  subsequent  to  such  acceptance.^ 

18.  Where  specific  performance  of  a  contract  by  the  an- 
cestor is  decreed  against  the  heir,  to  whom  nothing  has 
descended  except  the  property  in  question  ;  the  costs  wiU  be 
charged  upon  the  plaintiff".^ 

19.  Contract  with  a  person,  since  deceased,  for  the  pur- 
chase of  an  advowson  ;  but  no  steps  were  taken  to  enforce 

'  King  V  King,  1  My.  &  Kee.  442.  *  Abbott  v.  Calton,  19  Eng.  L.&  Eq. 

2  Williams  v.  Edwards,  2  Sim.  78.        601. 

'^  Vancouver  v.  Bliss,  11  Ves.  458.  ^  Noland  v.  Pope,  7  J.  J.  Marsh.  138. 

«  Sutphen  v.  Fowler,  9  Paige,  280. 


CH.  XXXVII.]  COSTS.  167 

the  contract  during  the  life  of  the  vendor,  or  for  a  considerable 
time  after  her  death,  the  vendee  objecting  to  the  title,  on  the 
ground  of  outstanding  judgments,  and  a  creditor's  bill  pend- 
ing. Held,  the  vendee  is  not  entitled,  as  against  a  devisee, 
to  present,  if  a  vacancy  occur  in  the  mean  time,  though  he 
has  not  renounced  his  contract,  but  insists  on  having  it  com- 
pleted. And  if,  in  consequence  of  his  insisting  on  such 
right,  a  bill  becomes  necessary  to  ascertain  the  true  claim  of 
the  next  presentation,  which  is  thereby  put  in  danger  of 
lapse ;  a  decree  in  favor  of  the  plaintiff  will  carry  costs  as 
far  as  his  claim  came  in  question,  although  it  be  part  of  the 
decree,  that,  subject  to  the  next  presentation,  he  be  permitted 
to  complete  his  contract.  Thomson,  C.  B.,  says  :  "  The  de- 
fendant, having  insisted  on  his  agreement,  and  having  assert- 
ed in  plain  terms  his  right  of  presentation,  he  by  so  doing, 
has  rendered  the  present  suit  on  the  part  of  the  plaintiff 
necessary,  and  the  Court  have  eventually  decreed  that  his 
claim  Avas  ill  founded.  Therefore,  as  far  as  relates  to  the 
advowson,  he  ought  to  pay  the  costs."  Graham,  B.,  says  : 
"  The  conduct  of  Tucker  must  be  construed  into  a  refusal 
to  accept  the  title,  unless  sanctioned  by  the  decree  of  the 
Court ;  and  yet,  had  he  not  insisted  on  his  claim,  this  suit 
would  not  have  been  necessary."  Richards,  B.,  says  :  "  The 
contract  is  somewhat  like  an  agreement  for  the  purchase  of 
a  reversion,  in  which  case,  if  the  purchaser  were  allowed  to 
delay  the  completion  of  the  contract  the  object  of  it  would 
increase  in  value  hour  after  hour.  The  Court  having  decided 
against  him,  primd  facie  the  costs  follow  that  decision  ;  and 
then  the  question  arises,  whether  he  has  in  fact  made  a  suit 
necessary.  Now  his  delay  was  the  sole  cause  of  it,  and  his 
subsequent  conduct  shows  that  his  excuse  was  not  sincere, 
and  that  he  had  never  any  solid  objection  to  the  title,  but 
had  other  interested  motives."  ^ 

20.  Although,  as  has  been  seen,  the   usual   practice  in 
equity  now  is,  to  allow  costs  to  the  prevailing  party,  a  con- 

'  Wyville  v.  Bishop  of  Exeter,  I  Price,  292,  297. 


168  LAW    OP   VENDORS    AND    PURCHASERS.     [CH.  XXXVII. 

trary  doctrine  has,  sometimes,  heretofore  prevailed.  Thus  a 
bill  by  a  purchaser  for  specific  performance  was  ordered  to 
be  dismissed  for  defect  of  title,  a  necessary  party  not  choos- 
ing to  concur  in  conveying.  But  the  order  was  made  to 
dismiss  without  costs,  it  being  against  the  principles  of  the 
Court  to  order  the  defendant  to  pay  the  plaintiff  his  costs.' 

21.  As  has  been  already  suggested,  (s.  2,)  in  equity  costs 
do  not  follow  the  event  of  the  suit,  where  a  fair  question  is 
raised,  [a)  Lord  Eldon  remarks  :  "  The  question  I  have  to 
decide  is,  not  whether  the  conduct  of  either  party  was  right 
or  wrong,  &c.,  but  whether  there  was  a  fair  ground  for  dis- 
pute. As  to  the  costs  of  the  suit  in  equity,  it  is  in  many 
cases  very  hard,  that  costs  should  follow  the  event  of  the 
cause ;  yet  all  my  experience  has  persuaded  me,  that  it  is 
much  to  be  wished  that  the  course  of  the  Court  was  so. 
Certainly,  however,  that  is  not  the  present  course  of  the 
Court.  Where  there  is  a  fair  case  for  consideration,  it  is  not 
the  course  to  visit  the  party  who  fails  with  costs.  Upon  the 
question  in  this  cause,  which  I  separate  from  all  questions 
upon  the  propriety  of  previous  conduct,  my  opinion  has  never 
fluctuated  ;  but,  the  Master  having  expressed  his  opinion  that 
this  covenant  ought  not  to  have  been  inserted,  and  consid- 
ering what  passed  at  law,  that  the  Judges  would  not  decide 
the  case,  until  they  had  the  opinion  of  this  Court,  and  that 
professional  men  have  differed  upon  the  question,  it  would 
be  too  presumptuous  in  me  to  set  such  a  value  upon  my 
own  opinion  by  marking  the  resistance  of  the  defendant  with 
costs."  2 

1  Lewis  V.  Loxham,  3  Mer.  429.  «  Staines  v.  Morris,  1  Ves.  &  B.  8,  15; 

Cox  V.  Chamberlain,  4  Ves.  631. 

(«)  In  Campbell  v.  Home,  1  You.  &  Coll.  670,  where  the  losing  party  had 
been  in  fault,  the  Vice-Chancellor  said :  "  Considering  the  line  of  defence 
taken  by  the  answer,  and  the  quantity  of  irrelevant  matter  into  which  the 
defendant  lias  travelled  ;  and  considering  also  the  absence  of  any  ground 
for  the  objection  which  has  been  brought  forward  against  this  appointment, 
it  is  impossible  for  me  to  give  Colonel  Home  his  costs.  I  do  not,  however, 
think  it  necessary  to  fix  him  with  costs." 


CH.  XXXVII.]  COSTS.  169 

22.  Specific  performance  was  decreed  without  costs,  the 
abstract  delivered  not  containing  a  satisfactory  title.^ 

23.  Upon  a  bill  for  specific  performance  by  a  vendee,  who 
tenders  the  price,  but  fails  to  bring  it  into  Court,  the  plaintiff, 
though  he  prevails,  is  not  entitled  to  costs.^ 

24.  The  father  of  the  plaintiff  purchased  land,  paid  for  it, 
and  continued  in  possession  thirty  years,  till  his  death,  but 
never  received  a  deed.  The  plaintiff  files  his  bill  against  the 
defendant,  a  devisee  of  the  vendor,  for  a  deed.  Decree  for  a 
conveyance,  but  without  costs.^ 

25.  On  a  decree  for  specific  performance  against  the  infant 
heir  of  a  vendor,  the  Court,  where  there  has  been  no  default 
on  either  side,  will  give  no  costs  on  either  side.* 

26.  A  bill,  for  specific  performance  of  a  contract  to  make 
a  lease  to  the  defendant,  was  dismissed  without  costs  ;  the 
plaintiff  having  after  answer  given  a  notice  to  quit,  according 
to  a  proviso  for  determining  the  lease.^ 

27.  A.  contracted  to  sell  to  B.,  but,  at  the  request  of  B., 
(who  intended  to  build,  and  sell  in  lots,)  the  conveyance  was 
delayed.  In  the  mean  time  A.  died  intestate,  and  a  bill  be- 
came necessary  for  the  completion  of  the  contract.  Held, 
that  the  costs  of  the  suit,  which  was  rendered  necessary  by 
the  intestacy  of  A.,  ought  not  to  be  thrown  on  his  estate. 
Turner,  V.  C,  says :  "  The  cases  on  the  subject  stand  thus  : 
Sir  L.  Shadwell  has  decided,  that,  if  a  vendor  dies,  not  hav- 
ing demised  the  legal  estate  to  trustees  to  complete  the  sale, 
his  estate  must  bear  the  costs  of  a  suit  by  the  purchaser  to 
obtain  a  conveyance.  Sir  J.  L.  Knight  Bruce,  V.  C,  on  the 
other  hand,  has  decided,  that,  if  there  be  no  default  on  either 
side,  there  ought  to  be  no  costs  given.  In  this  difference  of 
opinion,  I  prefer  to  follow  the  latter  decision,  especially  as  in 
this  case  the  non-completion  and  the  non-execution  of  a 
conveyance  was  for  the  convenience  of  the  purchaser  him- 
self    I  cannot  make  the  estate  of  a  party  pay  costs  merely 

1  Wilson  V.  Clapham,  1  Jac.  &  W.36.  **  Hanson  v.  Lake,  2  Y.  &  Coll.  328. 

"  Galloway  v.  Barr,  12  Ohio,  354.  ^  Western   v.  Ferrin,   3   Ves.  &  B. 

3  Frobock"y.  Edwards,  2  Hay.  361.  197, 

VOL.  II.  15 


170  LAW    OF   VENDORS   AND    PURCHASERS.      [CH.  XXXVII. 

because  he  has,  by  the  act  of  God,  become  unable  to  execute 
the  conveyance."  ^ 

28.  If,  during  the  pendency  of  a  bill  for  an  injunction  to  a 
judgment  for  the  purchase-money,  and  for  the  rescission  of 
the  purchase,  on  the  ground  of  an  incumbrance  and  a  defect 
of  title,  the  vendor  removes  the  incumbrance  and  procures 
the  title ;  the  injunction  will  be  dissolved,  with  costs  to  the 
plaintiff,  but  without  damages.  But,  if  the  plaintiff'  had 
another  case  depending,  involving  the  same  questions,  where 
he  could  have  had  the  relief  asked  for,  by  a  proceeding  in 
that  case,  he  will  not  be  allowed  his  costs.^ 

29.  Specific  performance  was  decreed  without  costs,  the 
suit  being  occasioned  by  the  vendor's  refusal  to  produce 
documents  insisted  on  by  the  purchaser,  some  of  which  were 
necessary,  and  others  not.^  So  a  decree  was  rendered  for 
specific  performance,  without  costs  to  the  plaintiff",  the  ven- 
dor ;  the  title,  though  established  before  the  Master,  not 
being  clear  upon  the  abstract.'*  So,  upon  a  late  decision 
of  the  Court  of  Exchequer,  that  a  presumption,  from  non- 
payment of  tithes,  cannot  bar  even  a  lay  impropriator,  the 
Lord  Chancellor,  though  holding  the  contrary  opinion,  would 
not  compel  a  purchaser  to  take  such  a  title  ;  and  dismissed 
the  bill  against  him  for  a  specific  performance,  but  without 
costs.^  So  a  lessee's  bill  for  specific  performance  was  dis- 
missed ;  his  interest,  described  as  fifty  years,  the  residue  of 
a  term,  free  from  incumbrances,  being  a  few  years  only  of 
an  old  term,  and  a  reversionary  term,  from  another  lessor ; 
and  old  incumbrances  not  being  shown  to  be  discharged ; 
but  without  costs.^  So,  where  in  a  suit  by  a  vendor  for 
specific  performance,  the  Master  reported  in  favor  of  the 
title,  but  the  Court,  on  an  exception  taken  by  the  purchaser, 
deemed  the  title  doubtful ;  an  order  was  made,  dismissing 
the  bill  without  costs,  but  neither  allowing  nor  disallowing 

1  Hinder  v.   Streeter,  12   Eng.  L.&  *  CoUinge's  case,  3  Ves.  &  B.  143,  n. 

Eq.  345.  ^  Rose  v.  Calland,  5  Vcs.  186. 

^  Young  V.  McClung,  9  Graft.  336.  ^  White  v.  Foljarabe,  11  Ves.  337. 
3  Newall  V.  Smith,  1  Jac.  &  W.  263. 


CII.  XXXVII.]  COSTS.  171 

the  exception.^  So,  on  dismissing  a  bill  by  the  heir  and 
executor  of  a  purchaser,  to  have  a  good  title  made  by  the 
vendor,  and  to  restrain  collection  of  the  purchase-money  till 
such  title  be  made  ;  costs  should  not  be  decreed  against  the 
plaintiffs  jointly,  nor  against  the  executor  de  bonis  propriis? 

30.  Where  a  sale  was  vacated,  on  account  of  the  negli- 
gence of  the  solicitor  and  Master  in  describing  the  property, 
costs  were  refused  to  them  on  the  motion  to  discharge  the 
purchasers,  and  for  a  resale.  The  Vice- Chancellor  said  : 
"  The  infants,  to  whom  the  money  in  this  case  belongs,  have 
been  seriously  prejudiced  by  the  resale.  The  Court  was 
obliged  to  relieve  the  former  purchaser,  because  of  the  loose 
manner  in  which  the  property  had  been  put  up  and  sold. 
This  was  the  fault  of  both  solicitor  and  Master.  The  de- 
scription of  the  property,  as  given  in  the  mortgage  and  in 
the  decree,  speaking  as  it  does  of  a  party  wall,  was  sufficient 
to  have  put  them  on  inquiry  as  to  how  the  property  should 
be  sold  with  reference  to  party  walls  or  other  circumstances 
which  might  affect  the  sale ;  and  yet  no  inquiries  were  made 
and  no  heed  taken  of  the  fact,  leaving  the  purchasers  in  the 
dark  and  to  find  out  afterwards  that  they  had  been  misled. 
Under  these  circumstances,  I  think  the  solicitor  for  the  com- 
plainant must  forego  his  costs  on  the  motion  to  discharge 
the  purchasers,  and  of  the  order  for  a  resale  ;  and  that  the 
Master  must,  also,  be  content  to  receive  the  costs  and  ex- 
penses of  only  once  advertising  and  selling  the  property."  ^ 

31.  The  costs  of  suit  are  in  some  cases  divided  between 
the  parties.  Thus,  in  a  case  of  specific  performance,  the 
Court  in  New  York  remark  :  "  Although  the  complainants 
succeed  in  this  suit,  it  does  not  necessarily  follow  that  they 
are  entitled  to  costs  against  the  defendants.  They  furnished 
no  abstract  of  title  previous  to  filing  the  bill.  At  that  time 
too  there  was  a  judgment  outstanding,  which  was  apparently 
an  incumbrance,  and  which  they  took  no  steps  to  remove 

'  Wilcox  V.  Bellaers,  Turn.  &  E.  491.  ^  Walworth  v.  Anderson,  4  Edw.  Ch. 
2  Long  V.  Israel,  9  Leigh,  556.  281. 


172  LAW    OF   VENDORS   AND    PURCHASERS.      [CII.  XXXVII. 

though  they  offered  to  leave  enough  of  the  purchase-money 
to  cover  the  amount.  The  defendants  were  excusable  in 
standing  out  until  the  title  could  be  investigated,  and  under 
the  circumstances  they  ougiit  not  to  be  made  to  pay  the 
costs  of  the  suit.  Nor  do  I  think  the  defendants  are  entitled 
to  costs  against  the  complainants.  The  fairest  ground  on 
which  to  put  it  is  that  both  parties  have,  in  some  degree, 
been  in  the  wrong;  and  as  to  the  costs  of  the  suit  generally, 
each  party  should  bear  their  own.  The  defendants,  how- 
ever, should  not  have  taken  exception  to  the  Master's  report, 
and  the  costs  consequent  on  this  step  the  defendants  must 
pay."  1 

32.  Suit  for  specific  performance  by  vendor  against  pur- 
chaser. The  Master  reported,  that  a  good  title  was  first 
shown  pending  the  reference,  except  as  to  a  small  portion, 
which  the  Court  regarded  as  a  subject  for  compensation. 
Held,  the  defendant  should  have  costs  to  the  time  of  amend- 
ing the  bill,  and  the  plaintiff  afterwards.^ 

33.  In  a  late  English  case,^  the  Master  of  the  Rolls  said  : 
"  With  respect  to  the  costs  of  the  suit,  I  must  look  to  the 
general  conduct  of  the  parties ;  and  I  cannot  consider  this 
as  a  suit  occasioned  simply  by  a  question  respecting  the 
payment  of  interest,  or  decide  because  the  amount  of  in- 
terest has  been  determined  to  be  less  than  the  plaintiffs 
claimed  on  the  one  hand,  but  larger  than  the  defendant  con- 
tended ought  to  be  given  on  the  other,  that  I  ought  to  divide 
the  costs  of  the  suit.  The  contract  was  entered  into  on  the 
30th  of  November,  1843,  and  no  deposit  was  paid ;  it  was 
waived,  and  the  contract  under  which  the  parties  acted  may 
be  said  to  bear  date  the  30th  of  January,  1844.  It  is  im- 
possible to  look  at  the  proceedings  of  Mr.  Mousley  through- 
out this  business  without  seeing  (whatever  may  have  been 
the  cause)  that  there  have  been  a  fighting  and  fencing  off 
the  completion   of  this  contract ;  and  my  conviction  upon 

1  Scott  V.  Thorp,  4  Edw.  Ch.  1,4.  ^  Sherwin   v.  Shakspeare,   23   Eng. 

2  Freern  v.  Hesse,  17  Eng.  L.  &  Eq.     206. 
154. 


CH.  XXXVII.]  COSTS.  173 

the  evidence  is,  that  if  this  bill  had  not  been  filed,  it  would 
not  have  been  completed  up  to  this  time.  The  delay  with- 
out doubt  has  been  occasioned  by  the  conduct  of  the  de- 
fendant's adviser ;  the  plaintiffs,  therefore,  ought  not  to  bear 
the  expense,  and,  consequently,  they  must  necessarily  be 
borne  by  the  defendant." 

34.  In  a  late  case,^  the  costs  v/ere  divided,  in  consideration 
of  the  nature  of  the  several  objections  made  by  the  defend- 
ant to  the  plaintiff's  claim  ;  the  character  of  which  appears 
from  the  opinion  of  the  Court.  Wood,  V.  C,  says :  "  The 
contest  in  some  degree  arose  upon  the  question  of  convey- 
ance, which  was  still  unsettled ;  and  there  was  reason  to 
suppose  that  this  question  might  possibly  have  been  settled. 
But  when  the  claim  was  filed,  other  objections  were  raised 
by  the  defendant  to  the  specific  performance  of  the  agree- 
ment, and  the  defendant  objected  to  complete  at  all,  and 
contended  that  he  was  not  bo-und  to  take  the  plaintiff's  title. 
The  question  of  title  had  then  passed,  and  the  only  question 
was,  as  to  the  conveyance  to  be  made  by  the  plaintiff.  If  at 
the  hearing  the  defendant  had  said  that  he  only  objected  to 
the  form  of  the  conveyance,  a  decree  might  have  been  made 
to  settle  the  conveyance,  and  the  costs  of  the  suit  would  have 
followed  the  result.  But  the  question  now  raised  was,  in 
fact,  that  there  was  not  any  contract.  This  question  was 
paramount  to  that  of  title,  and  if  a  question  was  raised 
prior  to  the  question  of  title,  the  vendor  would  not  be  called 
upon  to  perfect  his  title,  and  the  costs  of  establishing  the 
prior  question  would  fall  upon  the  party  who  failed.  The 
defendant  has  taken  his  chance  of  success  upon  the  prior 
ground,  and,  having  failed,  must  pay  the  costs  of  the  suit, 
except  the  costs  of  the  exceptions  and  of  the  affidavits  ad- 
duced by  the  plaintiff  in  support  of  his  title." 

35.  The  question  of  costs  has  often  arisen  in  connection  with 
an  inquiry  into  the  title,  upon  a  reference  to  the  Master,  {a) 

'  Abbot  V.  Calton,  19  Eng.  602. 

(«)  The  Master's  decision  on  questions  of  taxation  is  final  as  to  matters  of 

15* 


17-1  LAW    OF   VENDORS   AND    PURCHASERS.      [cil.  XXXVII. 

36.  The  fact,  that  a  title  has  been  perfected  in  the  Master's 
office,  does  not  determine  the  question  of  costs  in  a  suit  for 
specific  performance.  This  depends  upon  the  consideration, 
whether  the  defects  removed  there  were  the  occasion  of  the 
suit.  The  Master  of  the  Rolls  says :  "  The  purchaser  takes 
a  reference  to  the  Master  to  inquire  into  the  title,  and  then 
raises  all  possible  objections  to  the  title,  most  of  which, 
however,  were  overruled  ;  one  of  them  related  to  a  mortgage 
mentioned  in  a  deed  of  upwards  of  one  hundred  years  old, 
which  had  not  since  been  heard  of;  the  vendor  contended 
that  the  mortgage  term  must  be  presumed  to  have  been  sat- 
isfied, but,  upon  search,  an  old  deed  of  reconveyance  was 
found.  This  fact  was  relied  on  by  the  defendant,  as  show- 
ing that  a  good  title  had  not  been  previously  made  out;  but, 
because  new  evidence  was  brought  forward  in  the  Master's 
office  by  the  vendor,  must  it  necessarily  be  taken  for  granted 
that  a  good  title  had  not  previously  been  made  out,  and 
must  the  vendor,  on  that  account,  pay  the  costs  ?  To  estab- 
lish such  a  rule  would  be  most  prejudicial,  not  only  to  a 
vendor  but  to  a  purchaser  ;  for  the  vendor  would  thereby  be 
deterred  from  bringing  forward  any  new  evidence  in  the 
Master's  office  in  confirmation  of  his  title,  for  fear  of  render- 
ing himself  liable  to  pay  the  costs  of  the  suit."  ^ 

37.  A  purchaser  declined  to  perform  the  contract,  on  the 
ground  of  inadequacy  of  value.  In  a  suit  by  the  vendor  for 
specific  performance,  by  a  decree,  dated  April,  1851,  it  was 
declared  that  he  was  entitled  to  such  performance,  and  a 

'  Scooues  V.  Morrell,  1  Beav.  251,  257. 


fact,  and  amount  of"  charges,  and  is  only  reviewed  by  the  Court,  when  he 
acts  upon  a  mistaken  principle  ;  and,  if  the  solicitor  negligently  or  igno- 
rantly  takes  some  unnecessary  proceeding,  it  is  the  duty  of  the  Master  to 
disallow  the  charge  made  in  respect  of  such  proceeding.  Alsop  v.  Oxford, 
1  Myl.  &  Kee.  564. 

Where  a  Master's  report  is  against  the  title,  a  vendor's  bill  may  be 
dismissed  with  costs  upon  motion.  Ben  net  College  v.  Carey,  3  Bro.  C.  C 
.390. 


CH.  XXXVII.]  COSTS.  175 

reference  was  made  to  the  Master,  to  inquire  whether  the 
plaintiff  could  make  a  good  title,  and,  if  so,  to  state  when 
such  good  title  was  first  shown ;  and  costs  were  reserved. 
The  Master  found  that  a  good  title  was  made,  and  that  it 
was  first  shown  in  April,  1852.  Held,  the  plaintiff  was  en- 
titled to  the  costs  of  reference.  Parker,  V.  C,  says  :  "  The 
investigation  of  the  title  seems  to  have  proceeded  up  to  a 
certain  point,  and  then  the  defendant  insisted  that  the  con- 
tract was  not  binding  on  him  for  a  certain  reason  ;  and, 
thereupon,  the  further  investigation  of  the  title  stopped,  and 
the  plaintiff  filed  his  bill  to  enforce  specific  performance  of 
the  contract,  and  obtained  a  decree.  I  entertain  no  doubt 
that  a  plaintiff,  getting  a  decree  for  specific  performance,  is 
entitled  to  the  general  costs  of  the  suit ;  and  the  only  ques- 
tion is,  as  to  the  costs  of  the  reference  as  to  title.  The  rule 
of  the  Court  is  very  clear  as  to  this.  When  the  parties  have 
a  dispute  as  to  the  title,  and  the  question  of  specific  per- 
formance turns  on  it,  the  Court,  if  it  finds  that  the  plaintiff 
was  in  the  wrong  when  he  filed  the  bill,  considers  that  fact 
in  disposing  of  the  costs  of  the  suit,  and  sometimes  makes 
a  decree  for  specific  performance  only  on  the  terms  of  his 
paying  the  costs,  because  he  was  in  the  wrong  when  the  bill 
was  filed.  This  case,  however,  does  not  belong  to  that 
class.  Here  the  reason  for  refusing  to  complete  was  a  ques- 
tion on  the  validity  of  the  contract.  According  to  the  case 
of  Croome  v.  Lediard,  the  general  rule  would  entitle  the 
plaintiff  to  the  costs  of  the  reference  as  well  as  to  the  general 
costs  of  the  suit.  The  plaintiff  was  under  a  condition  to 
make  out  a  good  title,  which  he  would  have  done  at  his  own 
expense  if  there  had  been  no  suit  instituted.  I  think  that 
the  defendant  has  brought  upon  himself  the  costs  occasioned 
by  having  the  title  investigated  in  the  Master's  office.  The 
only  doubt  which  I  have  is  occasioned  by  the  direction  in 
the  decree,  which  seems  to  be  in  some  degree  inconsistent 
with  that  view.  By  the  decree  it  was  referred  to  the  Master 
to  inquire  when  a  good  title  was  first  shown.     I  think,  how- 


176  LAW    OF    VENDORS   AND   PURCHASERS,      [cil.  XXXVII. 

ever,  that  I  am  not  bound  by  the  form  of  the  decree  in  this 
case  to  depart  from  the  general  rule  that,  where  the  pur- 
chaser's conduct  had  Ird  to  the  institution  of  the  suit,  he  is 
to  pay  the  costs  before  the  Master."  ^ 

38.  A  vendor  filed  a  bill  for  specific  performance,  alleging 
that  the  defendant  had  accepted  the  title  ;  but  the  defendant 
resisted  it,  on  the  ground  that  the  bankruptcy  under  which 
the  plaintiff  claimed  was  invalid.  Neither  allegation  turned 
out  correct ;  and,  though  a  good  title  was  first  shown  in  the 
Master's  office,  a  decree  for  specific  performance  was  made, 
without  costs.  The  Master  of  the  Rolls  says  :  "  If  the  plain- 
tiff in  this  bill  had  proceeded  on  this  allegation :  '  I  have 
entered  into  a  contract,  and  am  ready  to  perform  it,  and  you 
refuse,'  and  the  defendant  had  answered,  '  I  admit  the  con- 
tract and  am  willing  to  perform  it,  but  you  cannot  make  a 
good  title  without  the  concurrence  of  the  assignee  of  the 
insolvency,  which  you  refuse  to  obtain  ;'  if  that  had  been 
the  only  question  in  litigation,  and  a  good  title,  i.  e.  in  the 
case  supposed,  the  concurrence  of  the  assignee,  had  been 
first  shown  in  the  Master's  office,  then  the  plaintiff  would 
have  had  to  pay  the  costs  of  the  suit.  That  is  the  general 
rule,  but  it  is  not  a  rule  applicable  to  every  case  whatever  ; 
it  is  subject  to  a  variety  of  modifications  arising  out  of  the 
particular  circumstances  of  each  case.  Here  both  parties 
made  erroneous  allegations,  the  plaintiff  alleged  that  the 
defendant  had  accepted  the  title ;  the  defendant  that  a  good 
title  could  not  be  made  because  the  Jlat  was  invalid.  The 
real  question  never  occurred  to  either  party  until  a  very  late 
period  in  the  cause.  I  think,  under  the  circumstances,  I 
cannot  give  costs  to  either  side."  ^ 

39.  By  the  same  instrument,  the  plaintiff  agreed  to  sell  an 
estate  to  the  defendant,  and  the  defendant  another  estate  to 
the  plaintiff.  The  defendant,  being  unable  to  make  a  good 
title,  unsuccessfully  resisted  performance  of  his  agreement  to 

'  Abbott  0.  Sworder,  15  Eng.  L.  &  -  Sidcbothara  v.  Barrington,  5  Beav. 
Eq.  446.  261,262. 


CH.  XXXVII.]  COSTS.        » •  177 

purchase  the  plaintiff's  estate,  on  the  ground  that  the  agree- 
ment was  intended  to  take  effect,  only  on  the  basis  of  a 
mutual  exchange.  On  a  reference  of  the  plaintiff's  title,  the 
Master  found  that  the  plaintiff  could  make  a  good  title,, but 
not  that  he  could  make  such  title  before  the  filing  of  the  bill, 
the  consideration  of  time  having  been  expressly  excluded,  at 
the  hearing,  from  the  terms  of  reference.  Held,  the  defend- 
ant was  liable  to  the  costs  of  investigating  the  title  in  the 
Master's  office.^ 

40.  A  bill  prayed  specific  performance,  "  if  a  good  title 
could  be  made."  At  the  hearing,  it  was  declared  that  the 
agreement  ought  to  be  specifically  performed,  and  referred 
to  the  Master  to  inquire,  whether  a  good  title  could  be  made. 
The  INIaster  reported  in  the  negative.  The  plaintiff,  on  fur- 
ther directions,  waived  all  objections  to  the  title,  and  pro- 
posed to  take  the  property  ;  but  this  was  resisted  by  the 
vendor.  Held,  the  plaintiff  was  entitled  to  the  property,  but, 
being  aware  at  the  first  hearing  of  the  objections  to  the  title, 
he  ought  to  pay  the  costs  of  the  investigation  in  the  Master's 
office.^ 

41.  In  a  suit  for  specific  performance  by  a  vendor,  the 
costs  will  be  thrown  upon  the  purchaser,  though  the  Master 
reports  that  a  good  title  was  not  shown  till  after  the  filing  of 
the  bill ;  if  that  finding  proceeded  on  the  ground,  that  certain 
evidence  had  not  been  previously  furnished,  which  the  ven- 
dor had  offered  to  produce,  but  which  had  not  been  actually 
produced,  before  the  institution  of  the  suit,  in  consequence 
of  the  purchaser's  insisting  upon  other  unsubstantial  objec- 
tions.^ 

42.  The  question  sometimes  arises,  as  to  the  right  of  a 
party  who  has  been  compelled  to  pay  costs  to  recover  them 
back  from  other  parties. 

43.  Where  an  auctioneer  has  sold  an  estate,  the  title  of 
which  being  objected  to,  and  he  refusing  to  return  the  de- 

1  Croome  v.  Lediard,  2  My.  &  Kee.        ^  Bennett  v.  Fowler,  2  Beav.  302. 
293.  3  Long  „,  Collier,  4  Russ.  269, 


178  LAW    OF    VilNDORS   AND    PURCHASERS.      [oiI.  XXXVII. 

pasit,  an  action  is  b'rought,  in  which  he  afterwards  pays  the 
costs ;  the  auctioneer  cannot  recover  these  costs  against  the 
principfil  in  an  action  for  money  paid  to  his  use,  but  must, 
declare  specially.^ 

44.  A  bill  for  specific  performance  was  made  necessary, 
by  a  trustee's  refusing  to  join  in  the  conveyance.  The  Court 
being  of  opinion,  that  the  trustee  ought  to  pay  all  the  costs 
of  the  suit,  the  decree  was,  that  the  plaintiff  should  pay  the 
costs  of  all  the  other  defendants,  (although  he  had  a  decree 
against  them,)  and  recover  over  the  whole  costs  from  the 
defendant,  the  trustee.^ 

45.  In  connection  with  the  subject  of  this  chapter,  may  be 
considered  the  mutual  claims  of  vendor  and  vendee  for  inci- 
dental expenses  connected  with  the  sale,  not  strictly  coming 
under  the  denomination  of  costs. 

46.  An  act,  which  enabled  a  company  to  purchase  and 
take  land  for  making  a  railway,  provided  that  the  costs  of 
the  "  contracts,  sales,  and  conveyances  "  should  be  borne  by 
the  purchasers.  Held,  the  vendors  of  land  were,  under  these 
words,  entitled  to  be  reimbursed  the  costs  of  making  out 
their  title.^  (a) 

47.  Construction  of  a  contract,  that  a  reference  of  the 
expenses  was  confined  to  the  expense  of  the  conveyance, 
but  the  evidence  of  the  attorney  was  admitted  for  the  de- 
fendant, to  prove  the  intention  of  both  parties,  according  to 
verbal  instructions,  that  the  plaintiff,  the  purchaser,  should 
also  pay  the  expense  of  making  out  the  defendant's  title.* 

48.  Where  title-deeds  are  in  the  hands  of  persons  residing 

1  Spurrier  v,  Elderton,  5  Esp.  Ca.  1.  "*  Ramsbottom  v.  Gosdon,  1  Ves.  & 

'^  Jones  V.  Lewis,  1  Cox,  199.  Beam.  165. 

3  Addies  Charity,  3  Hare,  22. 


(a)  So,  where  the  company  are  made  liable  to  the  expenses  of  "  all  pur- 
chases "  to  be  made  by  virtue  of  the  act,  this  will  include  the  expenses  of 
investing  the  money  in  the  funds,  previously  to  its  being  laid  out  in  lands, 
to  be  settled  to  the  like  uses  as  the  land  purchased.  Bishop  of  Durham,  3 
You.  &  Coll.  690. 


CH.  XXXVII.]  COSTS.  179 

in  different  parts  of  the  country,  the  vendor  must  bear  the 
expense  of  the  purchaser's  sending  a  clerk  to  compare  the 
abstract  with  the  deeds.^ 

49.  A  purchaser  at  auction  cannot  recover  from  the  ven- 
dor the  expenses  of  preparing  the  deeds,  after  he  has  refused 
to  complete  the  purchase,  on  account  of  the  non-production 
of  certain  title-deeds  ;  though  his  attorney  prepared  the  con- 
veyances, on  the  faith  of  a  note  written  in  the  margin  of  the 
abstract  by  the  vendor's  solicitors,  stating  that  all  the  title- 
deeds  were  examined  by  them  on  the  original  purchase,  and 
that,  if  it  should  be  required,  they  would  apply  to  the  solici- 
tor for  the  original  seller  in  whose  custody  they  were.^ 

'  Hughes  V.  "Wynne,  8  Sim.  85.  •  Jarmain    v.   Egelstone,   5   Carr.  & 

Pay.  172. 


180  LAW   OF   VENDORS   AND   PURCHASERS,     [cil.  XXXVIII. 


CHAPTER    XXXVIII. 


PARTIES   TO    ACTIONS. 


1.  We  have  already  (Chap.  5,)  considered  the  necessity, 
and  the  respective  rights  and  liabilities,  of  parties  to  the 
contract  of  sale  and  purchase.  Having  now  completed  our 
view  of  the  remedies  in  equity  and  law  for  breach  of  such 
contract,  and  the  measure  and  amount  of  compensation  to 
be  recovered ;  we  proceed  to  some  further  inquiries  con- 
nected with  the  same  general  subject,  but  more  particularly 
relating  to  the  forms  of  proceeding.  Among  the  most  im- 
portant points  of  this  nature,  is  that  of  the  proper  parties  to 
a  suit,  brought  in  law  or  equity  by  either  the  vendor  or  the 
vendee  upon  the  contract  of  sale,  {a) 

2.  To  a  common  bill  for  specific  performance  of  a  sale, 
the  parties  to  the  contract  are  the  only  proper  parties.     Upon 


(a)  Upon  the  point,  who  may  be  considered  a  party  to  the  suit,  it  has 
been  held,  with  reference  to  a  claim  concerning  a  deposit,  that  a  defendant 
is  not  a  party  seeking  the  aid  oftlie  Court,  and  therefore  is  not  entitled  to  an 
interlocutory  order  for  his  own  relief  or  security,  as  to  the  subject-matter  of 
a  suit,  unless  as  a  condition  of  an  or^er  applied  for  by  the  plaintiff.  The 
Vice- Chancellor  says:  "Though  a  defendant  cannot  primarily  move  for 
any  order  for  his  security,  because  he  is  not  a  party  seeking  the  aid  of  the 
Court ;  yet  if,  at  the  time  of  continuing  the  injunction,  he  had  brought 
forward  this  claim  as  to  the  deposit,  and  it  ajipeared  to  have  been  just,  the 
Court  would  have  enforced  it ;  not  in  the  nature  of  relief  to  him,  but  as  a 
condition  annexed  to  the  relief  given  to  the  plaintiff".  And  although  the 
defendant  has  neglected  the  convenient  opportunity  for  the  application,  yet 
I  think  it  still  open  to  him,  and  that  I  may  consider  it  in  principle  as  a 
motion  to  dissolve  the  injunction,  unless  the  plaintiff  pay  the  money  into 
Court."     Wynne  v.  Griffith,  1  Sim.  &  Stu.  147,  149. 


en.  xxxvrii.]  parties  to  actions.  181 

this  subject  Lord  Cottenham  remarked  :  "  The  contract  is, 
in  the  usual  form,  between  John  Wood,  the  vendor,  and 
Thomas  White,  the  purchaser ;  and  they  alone  ought  to 
have  been  parties  to  the  suit ;  instead  of  which,  the  trustees 
of  Mr.  Lucas's  settlement,  and  she  and  her  husband,  are 
made  parties  co-plaintiffs  with  the  vendor,  John  Wood.  If 
their  concurrence  had  been  necessary  to  give  security  to  the 
purchaser,  it  was  for  John  Wood  to  bring  them  forward  to 
assist  in  giving  effect  to  his  contract;  but  as  plaintiffs  they 
have  no  title  to  sue.  If  the  infant  children  of  William  had 
been  made  co-plaintiffs,  or  if  there  had  been  children  of  Mr. 
and  Mrs.  Lucas,  and  they  had  been  made  co-plaintiffs,  I 
should  have  refused  to  make  any  decree  in  a  cause  so  con- 
stituted, because  I  should  have  supposed  that  the  object  was 
to  attempt  to  bind  the  infants  in  a  suit  by  the  proceedings 
of  which  they  ought  not  to  be  bound ;  but  as  all  the  plain- 
tiffs are  adults,  and  the  objection  has  not  been  taken  by  the 
defendant,  I  do  not  think  it  necessary  to  do  more  than  to 
observe  upon  the  frame  of  the  suit,  that  it  may  not  be  sup- 
posed, by  my  making  a  decree  in  it,  to  have  received  any 
sanction  from  me.'" 

3.  But  though,  in  general,  none  but  the  signers  of  the 
contract  ought  to  be  parties  to  a  bill  for  specific  perform- 
ance ;  yet  a  purchaser  may,  under  special  circumstances, 
make  other  persons  interested  in  the  estate  defendants.^ 

4.  Separate  purchasers  of  different  parcels  of  the  same  lot 
cannot  join  in  a  bill  against  the  former  owner,  to  compel  the 
performance  of  a  prior  contract  for  the  sale  and  purchase  of 
such  lot,  between  the  former  owner  and  another  person,  upon 
the  ground  that  such  prior  contract  has  been  assigned  to  one 
of  the  complainants,  as  well  in  his  own  behalf  as  to  protect 
the  interests  of  his  co-complainants  ;  where  there  is  nothing 
beyond  the  averment  in  the  bill,  to  show  that  the  purchase 
or  transfer  of  such  contract  was  for  the  benefit  of  all  the 
complainants,  or  was  made  at  their  request,  or  with  their 

1  Wood  V.  White,  4  Myl.  &  Cra.  460.        2  Tasker  v.  Small,  6  Sim.  633. 
VOL.   II.  16 


182  LAW    OF   VENDORS    AND   PURCHASERS.     [CH.  XXXVIII. 

assent.  The  Court  remark,  in  substance,  that  persons  having 
distinct  claims  against  another,  arising  upon  separate  and 
indepondent  contracts,  cannot  join  in  a  bill  to  enforce  such 
claims  ;  where  there  is  no  proof  of  a  common  interest  in  the 
subject-matter.  To  allow  persons  having  distinct  claims 
against  the  same  individual  to  maintain  a  joint  suit  against 
him,  merely  because  the  act  of  one  may,  if  valid,  incidentally 
prove  beneficial  to  the  others,  might  be  productive  of  great 
oppression  and  injustice.^ 

5.  Upon  the  same  ground,  a  demurrer  by  a  defendant  for 
midtifarioKsness,  the  bill  being  against  several  purchasers 
and  others,  was  allowed.  The  Vice-Chancellor  says  :  "  The 
estate  was  vested  in  the  plaintiffs,  for  the  purpose  of  selling 
the  same ;  and  that  part  of  the  estate  was  accordingly  sold 
in  six  different  lots  to  six  different  purchasers,  who,  with 
several  other  persons,  are  made  defendants  to  this  bill.  A 
separate  agreement  had  been  entered  into  with  each  pur- 
chaser. Some  of  the  purchasers  have  not  demurred.  The 
Court  is  always  averse  to  a  multiplicity  of  suits ;  but,  cer- 
tainly, a  defendant  has  a  right  to  insist  that  he  is  not  bound 
to  answer  a  bill  containing  several  distinct  and  separate 
matters  relating  to  individuals  with  whom  he  has  no  con- 
cern. A  decisive  objection  to  this  bill  is,  that  the  purchases 
of  the  different  lots  are  made  by  distinct  persons,  each  agree- 
ment being  separate  and  distinct.  The  circumstances  at- 
tending the  sale  of  one  lot  may  be  very  different  from  those 
relating  to  other  lots  ;  one  may  have  objections,  another  has 
not."  2 

6.  Two  houses  held  under  one  lease  were  sold  in  separate 
lots,  and  it  was  stipulated  that  the  purchasers  should  be 
parties  to  each  other's  assignment.  Held,  the  purchaser  of 
one  lot  was  not  a  necessary  party  to  a  suit  for  specific  per- 
formance against  the  purchaser  of  the  other.  The  Master 
of  the  Rolls  says :  "  If  there  is  to  be  a  specific  performance 


1  Wood  V.  Perry,  1  Barb.  114.  88.     See  Reynerz;.  Julian,  2  Dick.  677  ; 

2  Brookes  v.  Wliitwortli,  1  Madd.  86,     Wall  v.  Northumberland,  2  Anstr.  469. 


CH.  XXXVIII.]  PARTIES   TO   ACTIONS.  183 

of  the  contract,  the  purchaser  of  lot  2  will  be  bound  to  con- 
cur in  the  assignment ;  but  is  it  necessary  that  he  should  be 
a  party  to  all  the  litigation  between  the  vendor  and  the 
purchaser  of  lot  1  ?  I  think  not ;  besides  this,  the  bill  alleges 
that  he  is  ready  to  concur.  Athough  it  might  by  possibility 
become  necessary  hereafter  to  compel  him  to  join  in  the 
assignment,  still  I  see  no  reason  for  making  him  a  party  to 
a  suit  until  that  necessity  arises."  ^  (a) 

7.  C.  contracted,  as  agent  of  A.  and  B.,  to  sell  an  estate 
to  D.,  and  received  a  deposit  in  part-payment  of  the  intended 
purchase-money.  C.'s  agency  was  afterwards  denied  by  A. 
and  B.,  and  D.  then  filed  a  bill  against  A.,  B.,  and  C,  pray- 
ing a  specific  performance,  or,  in  the  alternative,  that  C. 
might  be  decreed  to  return  the  deposit,  and  to  reimburse  the 
plaintiff  all  the  expenses  of  endeavoring  to  enforce  the  con- 
tract. Bill  dismissed  with  costs.  In  this  case,  upon  the 
general  subject  of  compensation  in  equity.  Lord  Cottenham 
said :  "  I  certainly  recollect  the  time  at  which  there  was  a 
floating  idea  in  the  profession  that  this  Court  might  aw^ard 
compensation  for  the  injury  sustained  by  the  non-perform- 
ance of  a  contract,  in  the  event  of  the  primary  relief  for  a 
specific  performance  failing."  ^ 

1  Paterson  v.  Long,  5  Beav.  186,  187.        ^  Sainsbury  v,  Jones,  5  Myl.  &  Cra. 

1,  3. 

(a)  It  has  been  held,  that  a  demurrer  will  not  lie  to  a  bill  for  being  mul- 
tifarious. But  upon  the  general  subject  the  Court  remark :  "  Each  party's 
case  would  be  distinct,  and  would  depend  upon  its  own  peculiar  circum- 
stances ;  and  there  must  have  been  a  distinct  bill  upon  each  contract." 
Rayner  v.  Julian,  2  Dick.  677. 

The  case  of  Bull  v.  Allen,  (Bunb.  69,)  was  a  "bill  to  be  relieved  against 
several  contracts  entered  into  by  the  plaintiff  with  the  defendants,  relating 
to  shares  in  a  bubble  called  the  Pennsylvania  Bubble,  and  to  have  his  money 
repaid,  which  he  had  paid  to  the  defendants  for  shares  sold  by  them  respec- 
tively ;  and  charges  that  the  defendants  had  formed  themselves  into  a  society 
to  carry  on  the  fraud.  The  defendants  demurred,  because  the  bill  con- 
tained several  and  distinct  charges  against  several  and  distinct  defendants  ; 
and  the  demurrer  was  allowed.  Nota,  they  denied  combination,  as  is  neces- 
sary upon  such  a  demurrer  as  this." 


184  LAW    OF   VENDORS    AND    PURCnASERS.     [CH.  XXXVIII. 

8.  In  case  of  fraud  on  the  part  of  a  vendee,  a  subsequent 
conveyance,  while  the  fraudulent  vendee  is  in  actual  posses- 
sion, claiming  the  land,  is  inoperative  ;  and  a  suit  to  set  aside 
the  first  sale  must  be  brought  in  the  name  of  the  vendor,  or 
of  his  legal  representatives,  if  he  is  dead.^  And,  where  the 
vendor  is  dead,  all  his  heirs  should  be  parties  to  a  bill,  to  set 
aside  the  sale  for  fraud  of  the  vendee.^  So,  in  a  suit  de- 
manding the  specific  performance  of  a- contract,  by  convey- 
ing lands  in  Ohio,  stipulated  to  be  conveyed  as  the  consid- 
eration for  other  lands  sold  in  Kentucky,  or,  in  lieu  thereof, 
requiring  indemnification  by  the  payment  of  money ;  held, 
all  the  co-heirs  of  the  vendor,  deceased,  ought  to  be  made 
parties  to  the  bill,  or  the  death  of  one  omitted,  to  be  proved.^ 

9.  To  a  suit  by  the  personal  representative  of  a  vendor 
for  specific  performance,  his  real  representative  is  a  necessary 
party.  The  Lord  Chancellor  said  :  "  This  was  a  suit  by  the 
administrator  of  the  vendor  against  the  purchaser  of  an 
estate  for  a  specific  performance  of  the  agreement  of  sale. 
The  defendant  by  his  answer  objected  that  the  heir  at  law 
of  the  vendor  ought  to  have  been  a  party  to  the  suit.  It 
was  argued  that  by  the  contract  the  estate  was  converted 
into  personalty,  and  that  the  heir  at  law  had  no  interest  in 
the  matter.  But  that  is  to  assume  the  very  point  in  contro- 
versy, for  the  heir  at  law  may  dispute  the  contract  and  con- 
trovert its  validity.  It  was  further  argued,  that,  as  a  general 
rule,  it  is  not  necessary  to  make  parties  to  the  bill  those  who 
are  not  parties  to  the  contract,  but  that  rule  does  not  extend 
to  representatives ;  and  the  heir  at  law  is  the  representative 
of  the  vendor  as  to  the  realty.  The  cases  which  were  cited 
do  not  apply.  The  mortgagee,  it  is  said,  need  not  be  a  party 
in  a  suit  by  the  mortgagor.  But  his  interest  is  not  affected 
by  the  sale,  and  on  payment  of  the  mortgage-money  by  the 
purchaser  it  entirely  ceases.  So,  as  to  the  cases  where  the 
sale  is  by  a  person  holding  the  estate  under  a  conveyance  or 

1  Livingston  v.  Peru.  &e.  2  Paige,  390.  ^  Morgan  v.  Morgan,  2  Wheat.  290. 

2  Ibid. 


CH.  XXXVIII.]  ,    PARTIES   TO   ACTIONS.  185 

a  demise  ;  the  heir  at  law  of  the  grantor  or  devisor  need  not 
be  made  a  party ;  he  does  not  claim  through,  or  in  any  way 
represent,  the  vendor.  The  purchaser  is  not  to  be  prejudiced 
by  the  death  of  the  vendor,  but  is  entitled  to  the  same  benefit 
from  a  decree  as  if  it  had  passed  against  the  vendor  him- 
self." ' 

10.  Bill  by  devisees  in  trust  to  sell,  for  specific  perform- 
ance, of  an  agreement  to  purchase.  Exception  to  the  re- 
port in  favor  of  the  title,  that  the  persons  entitled  to  the 
purchase-money,  subject  to  debts,  legacies,  and  other  charges, 
were  not  parties  to  the  suit.  The  Lord  Chancellor  was  of 
opinion  that  they  ought  not  to  be  parties  to  the  conveyance ; 
and,  if  they  were,  their  covenant  ought  to  extend  only  to 
their  own  acts  and  those  of  the  devisor ;  not  to  a  general 
warranty,  without  a  special  contract  for  it ;  but,  as  the  point 
must  come  properly  upon  objections  to  the  conveyance,  the 
exception  was  overruled  upon  the  form.  He  also  held,  that 
it  was  not  matter  of  exception  to  the  report  in  favor  of  the 
title,  that  the  heir  of  the  devisor  was  not  a  party  to  the  suit. 
Lord  Loughborough  says :  "  The  scope  of  the  exception  is, 
that  these  persons  are  not  made  parties  to  the  suit.  That 
comes  a  great  deal  too  late  in  the  cause  ;  and  was  an  objec- 
tion to  be  made  at  the  hearing.  It  then  supports  itself  by 
certain  hints  of  objections,  which  are  not  made  a  substantive 
ground  of  exception.  I  cannot  allow  this  without  laying 
down  as  a  general  proposition,  that  all  persons  interested  in 
the  money  to  arise  from  the  sale  ought  to  be  parties  to  the 
contract."  ^ 

11.  To  a  bill  against  a  vendor  for  specific  performance,  his 
stewards  and  receivers  ought  not  to  be  made  parties.  And, 
specific  performance  being  decreed,  the  bill  as  against  them 
was  dismissed  with  costs.^ 

12.  The  plaintiff  agreed  to  sell  to  the  defendant  a  piece  of 
land  in  the  occupation  of  his  tenant,  and  to  buy  up  the 

1  Roberts  v.  Marchant,  1  Phill.  370,  '^  Wakeman  v.  Rutland,  3  Ves.  233, 
373.  234;  8  Bro.  P.  C.  145. 

3  McNamara  u.  Williams,  6  Ves.  148. 
16* 


180  LAW    OF   VENDORS   AND   PURCHASERS,    [cn.  XXXVIII. 

tenant's  interest.  The  defendant  having  entered  before  pay- 
ment of  his  purchase-money,  the  plaintiff  and  his  tenant 
served  him  with  notices  not  to  trespass  ;  and  afterwards  the 
plaintiff  filed  a  bill  against  the  defendant  for  specific  per- 
formance and  to  restrain  the  trespass.  Held,  the  tenant  was 
not  a  necessary  party  to  the  suit.^ 

13.  When  a  bill  for  specific  performance  is  filed,  by  a  per- 
son who  has  contracted  to  purchase  the  absolute  legal  and 
equitable  interest  in  a  mortgaged  estate,  from  the  supposed 
owner  of  the  equity  of  redemption,  neither  the  mortgagee, 
nor  a  person  who  claims  an  interest  in  the  equity  of  redemp- 
tion, but  has  not  joined  in  the  contract,  can  be  made  a  de- 
fendant ;  although  the  mortgagee  does  not  object  to  being 
made  a  party,  but  requires  the  sanction  of  such  claimant 
before  joining  in  the  convey ance.^ 

14.  The  general  rule,  that  an  action  lies  only  against  a 
party  to  the  contract,  is  sometimes  held  inapplicable  to  one 
having  notice  of  such  contract. 

15.  Bill  for  specific  performance  of  a  contract  to  sell. 
Two  persons  held  land  in  common.  One,  professing  to  act 
for  both,  contracted  by  deed,  signed  by  himself  alone,  to  sell 
a  small  part  of  it  to  the  plaintiff,  but  the  other  owner  refused 
to  sell.  Afterwards,  the  two  conveyed  the  whole  to  the  de- 
fendant, who  knew  of  the  contract.  Decree  for  the  plaintiff. 
The  Court  say  :  "  The  appellee  took  possession  of  the  lot  of 
land  purchased  by  him,  and  made  use  of  it  in  the  mode  con- 
templated when  he  purchased  by  opening  a  race  through  it. 
It  was  said  in  Robinett  v.  Preston,-^  that  although  a  convey- 
ance by  one  joint  tenant  of  a  part  of  the  land  might  have 
no  legal  effect  to  the  prejudice  of  the  co-tenant,  yet  it  would 
be  effectual  to  pass  the  interest  of  the  grantor  in  the  tract. 
And  if,  upon  partition,  the  share  assigned  to  the  co-tenant 
did  not  include  the  part  conveyed,  the  co-tenant  would  get 
all  he  was  entitled  to,  and  the  grantor  could  not  deny  his 
deed.     If,  upon  a  partition,  that  part  of  the  land  described 

1  Kobertson  v.  Great  Western,  &c.  10  ^  Tasker  v.  Small,  3  Myl.  &  Cra.  63. 
Sim.  314.  3  2Kob.  R.  277. 


CH.  XXXVIII.]  PARTIES   TO   ACTIONS.  187 

by  this  deed  or  affected  by  the  water  privileges,  had  been 
assigned  to  John  T.  McKee,  he  would  have  been  in  a  con- 
dition to  have  executed  his  contract,  if  he  would  not,  in  that 
event,  have  been  estopped  by  his  deed  from  disturbing  his 
vendee ;  and  his  son  claiming  under  his  subsequent  convey- 
ance with  full  notice,  can  occupy  no  higher  ground."  ^ 

16.  Where  a  contract  is  entered  into  for  the  purchase  of 
an  estate  by  certain  persons  in  their  own  names,  but  in  fact 
on  their  own  account,  and  also  as  agents  for  other  parties,  a 
bill  to  rescind  the  contract  may  be  filed  in  the  names  of  the 
agents  and  the  other  parties.  And,  where  the  partners  in  a 
company  or  partnership  are  numerous,  such  bill  may  be  filed 
by  some  of  the  partners,  on  behalf  of  themselves  and  the 
others,  if  it  is  manifestly  for  the  benefit  of  all  that  the  con- 
tract should  be  rescinded.^ 

17.  The  plaintiffs,  being  interested  in  certain  lands,  but  hav- 
ing no  common  legal  interest  in  any  portion  of  them,  agreed 
together  to  put  them  up  for  sale,  according  to  their  respective 
interests,  and  the  lands  were  so  put  up,  under  the  direction 
of  their  agent,  in  lots.  Each  lot  was  described  in  a  separate 
paper,  containing  the  conditions  of  sale,  in  which  it  was 
stipulated  that  "  the  vendors  "  should  deliver  an  abstract  of 
title ;  that  the  conveyances  should  be  executed,  and  the 
whole  purchase-money  paid,  on  a  certain  day,  from  which 
time  the  purchaser  should  have  possession;  and  that,  if  the 
purchaser  should  be  let  into  possession  before  payment  of 
the  purchase-money,  he  should  be  considered  tenant  at  will 
to  the  vendors,  and  pay  interest  at  the  rate  of  4  per  cent,  on 
the  amount  of  purchase-money,  as  and  for  rent.  The  de- 
fendant bought  four  of  the  lots  under  the  above  conditions, 
two  by  auction,  and  two  by  private  contract.  No  abstract 
of  title  was  delivered ;  but  the  defendant  was  let  into  pos- 
session, and  held  for  several  years,  not  paying  the  purchase- 
money,  and  having  notice  of  the  arrangement  entered  into 
by  the  plaintiffs  for  the  sale.  Held,  the  plaintiffs  could  not 
jointly  sue,  upon  an  implied  contract  by  the  defendant,  to 

1  McKee  v.  Barley,  11  Gratt.  340, 346.       ^  Small  v.  Atwood,  Yonnge,  407. 


188  LAW    OP   VENDORS   AND   PURCUASEIIS.     [CU.  XXXVIII. 

waive  the  delivery  of  an  abstract,  and  perform  the  condition 
for  payment  of  4  per  cent,  interest  as  rent.  Also,  that  the 
plaintiffs  could  not  recover  the  4  per  cent,  in  a  joint  action 
for  use  and  occupation.  Lord  Denman,  C.  J.,  says :  "  The 
undertaking  relied  upon  must  result  either  from  the  original 
contract  of  sale,  or  from  a  joint  ownership  in  the  plaintiffs  and 
occupation  under  them.  But  the  contract  proved  does  not 
support  the  action,  and  there  is  no  joint  ownership  proved." 
Littledale,  J.,  says :  "  The  remedy  was  to  be  sought  in  equity" 
(for  payment  of  the  4  per  cent,  interest).  "  As  to  the  count 
for  use  and  occupation,  the  eighth  condition,  under  which  the 
defendant  is  said  to  have  occupied,  supposes  that  the  vendors 
shall  have  performed  their  part  of  the  previous  contract,  and 
provides  for  the  case  of  default  made  by  the  purchaser,  after 
such  performance.  The  law  would  not  imply  that  the  ven- 
dee had  subjected  himself  to  such  a  condition  by  being  let 
into  possession  while  the  title  remained  uncertain.  And 
supposing  that  the  defendant  under  the  circumstances  had 
agreed  to  be  bound  by  the  eighth  condition,  the  action  ought 
not  to  have  been  for  use  and  occupation  ;  the  declaration 
should  have  been  special  on  the  contract  to  pay  4  per  cent."  ^ 
18.  A  husband  may  recover  back  money  laid  out  by  his 
wife  in  the  purchase  of  lands,  unless  he  was  privy  to  her 
bargain  or  consented  to  it.  Holt,  C.  J.,  says :  "  If  articles 
of  agreement  are  made  by  a  feme  covert  by  the  order  and 
appointment  of  her  husband,  and  the  money  is  paid  by  the 
wife  in  pursuance  of  such  agreement ;  or  if  the  husband 
(though  not  privy  at  the  time  of  the  purchase)  afterwards 
consents  to  it,  the  property  of  the  money  is  altered,  and  the 
husband  cannot  maintain  trover.  But  if  he  is  not  privy  to 
such  purchase,  nor  agrees  to  it,  trover  will  not  lie  for  him 
against  the  vendor,  who  receives  his  money  of  his  wife."  ^  (a) 

1  Seaton  v.  Booth,  4  Ad.  &  Ell.  528,        ^  Qarbrand  v.  Allen,   1  Ld.  Raym. 
534,  551.  224. 

(a)  Upon  the  general  subject  of  parties,  including  parties  to  contracts 
and  parties  to  actions,  a  few  miscellaneous  points  remain  to  be  noticed. 


CH.  XXXVIII.]  PARTIES   TO   ACTIONS.  189 

It  Las  been  held,  that  an  infant  cannot  sustain  a  suit  for  specific  perform- 
ance, because  the  remedy  is  not  mutual.  Flight  v.  BoUand,  4  Russ.  298 ; 
2  Story,  Eq.  s.  751,  n.  Inasmuch  as  both  the  rule  and  the  reason  of  it  are 
a  departure  from  the  general  principle,  which  holds  infancy  to  be  a  strictly 
personal  privilege,  and  from  other  analogies  of  the  law,  it  is  desirable  to 
state  at  length  the  case  upon  which  the  doctrine  chiefly  rests.  In  this  case, 
the  bill  was  filed  by  the  plaintiff,  as  an  adult.  Upon  discovering  that  he 
was  an  infant,  the  defendant  moved  that  the  bill  be  dismissed  Avith  costs 
against  the  plaintiff's  solicitor  ;  and  the  plaintiff  was  then  allowed  to  amend 
by  inserting  a  next  friend.  Upon  the  opening  of  the  case,  a  preliminary 
objection  was  taken,  that  a  bill  by  an  infant  could  not  be  sustained.  It  was 
argued,  in  support  of  the  objection,  that  specific  performance  cannot  be 
decreed  against  an  infant,  and  if  a  decree  were  made  as  prayed  for,  the 
Court  could  not  compel  the  plaintiff  to  execute  it ;  that  he  could  not  be 
forced  to  pay  the  purchase-money,  and,  on  attaining  full  age,  might  repudiate 
the  contract  and  the  suit.  On  the  other  side  it  was  argued,  that  the  want  of 
mutuality  is  not  in  all  cases  an  objection  to  specific  performance ;  as  in  case 
of  a  contract  by  a  husband  for  sale  of  the  wife's  land,  which  the  husband 
and  wife  may  enforce,  but  which  cannot  be  enforced  against  either  of  them. 
So  also  a  party  who  has  signed  an  agreement,  though  himself  bound,  cannot 
enforce  it  against  one  who  has  not  signed  it.  Sir  John  Leach,  Master  of 
the  Rolls,  says :  "  No  case  of  a  bill  filed  by  an  infant  for  the  specific  per- 
formance of  a  contract  made  by  him  has  been  found  in  the  books.  It  is  not 
disputed,  that  it  is  a  general  principle  of  Courts  of  Equity  to  interpose  only 
where  the  remedy  is  mutual.  The  plaintiff's  counsel  principally  rely  upon 
a  supposed  analogy  afforded  by  cases  under  the  Statute  of  Frauds,  where 
the  plaintiff  may  obtain  a  decree  for  specific  performance  of  a  contract 
signed  by  the  defendant,  although  not  signed  by  the  plaintiff".  It  must  be 
admitted  that  such  now  is  the  settled  rule  of  the  Court,  although  seriously 
questioned  by  Lord  Redesdale  upon  the  ground  of  want  of  mutuality.  But 
these  cases  are  supported,  first,  because  the  Statute  of  Frauds  only  requires 
the  agreement  to  be  signed  by  the  party  to  be  charged  ;  and  next,  it  is  said 
that  the  plaintiff,  by  the  act  of  filing  the  bill,  has  made  the  remedy  mutual. 
Neither  of  these  reasons  apply  to  the  case  of  an  infant.  The  act  of  filing  the 
bill  by  his  next  friend  cannot  bind  him ;  and  my  opinion  therefore  is,  that 
the  bill  must  be  dismissed  with  costs,  to  be  paid  by  the  next  friend."  But 
see  Clayton  v.  Ashdown,  9  Vin.  393,  pi.  1  ;  Shannon  v.  Bradstreet,  1  Sch.  & 
L.  52,  58  ;  1   Sugd.  282. 

Though  an  infant  who  has  entered  into  a  contract  cannot  be  compelled  to 
complete  it,  yet  he  cannot  maintain  an  action  to  recover  back  a  deposit. 
Wilson  V.  Kearse,  Peake's  Add.  Cas.  196. 

English  statutes,  not  generally  in  force  in  this  country,  have  provided  for 
the  conveyance  of  estates  purchased,  by  infant  trustees. 


190  LAW    OF   VENDORS  AND   PURCHASERS.    [ClI.  XXXVIII. 

A  vendor  dying  before  tlie  sale  was  conipleted,  Iiis  licir  at  law,  an  infant, 
■was  declared  to  be  a  trustee,  within  the  Statute  of  the  7th  of  Queen  Anne, 
and  directed  to  convey.     Smith  v.  Ilibbard,  2  Dick.  730. 

So  an  infant  trustee  has  been  held  bound  to  join  in  a  conveyance  within 
the  above  statute.  Otherwise,  where  the  infant  has  an  interest,  or  there  is 
a  doubt  thereof,  unless  on  proper  suit.     Hawkins  v.  Obeen,  2  Yes.  559. 

The  Court  will  not  on  motion  or  petition  order  an  infiint  trustee  to  con- 
vey, unless  the  trust  appear  in  writing,  but  will  leave  the  cestui  to  get  a 
decree  by  bill.     Vernon,  2  V.  Wnis.  549. 

The  statute,  enabling  infant  trustees  to  convey,  extends  only  to  plain  and 
express,  not  to  implied  or  constructive,  trusts.  Goodwyn  v.  Lister,  3  P. 
Wms.  387.  The  Lord  Chancellor  says :  "  There  can  be  no  doubt  with  re- 
gard to  express  trusts  by  deed,  but  that  an  inflmt,  being  a  mere  trustee, 
may  be  ordered  to  convey ;  and  there  is  no  inconvenience  in  directing  an 
infant  to  part  with  an  estate,  which  is  of  no  benefit  to  him.  But  the  present 
question  is,  whether  this,  being  a  trust  onli/  by  construction  of  equi/;/,  be 
within  the  act ;  and  here  I  incline  strongly  to  the  negative.  I  cannot  think 
constructive  trusts  to  have  been  within  the  view  of  this  Act  of  Parliament, 
which  does  not  make  provision  for  infants  to  convey  in  pursuance  of  the 
decrees  of  this  Court,  but  only  gives  power  to  make  orders  in  a  summary 
way,  in  cases  that  ai'e  originally  plain  and  uncontroverted  by  the  parties." 

A  tenant  of  frank  tenement,  descendible,  agrees  to  sell,  receiving  part  of 
the  purchase-money.  The  vendor  dies ;  his  heir  enters ;  and  the  vendee 
exhibits  this  bill  against  him,  to  have  his  contract  executed.  Bill  dismissed, 
upon  the  ground  that  the  heir  is  but  a  special  occupant,  and  does  not  claim 
under  his  father.     Anon.  2  Freem.  155. 

Bill  for  specific  performance.  A  copyholder  covenants  with  the  plaintiffs 
to  surrender  to  trustees,  in  trust  to  sell,  and  dies  before  surrender,  leaving 
an  infant  heir  the  defendant.  The  plaintiffs,  having  agreed  to  sell  the 
estate,  file  this  bill.  Held,  the  heir  was  not  an  infant  trustee  within  6  Geo. 
IV.  c.  74,  and  therefore  could  not  be  ordered  to  surrender  immediately. 
Bill  dismissed,  with  costs.  King  v.  Turner,  2  Sim.  550.  "  The  Vice-Chan- 
cellor said,  that  he  always  considered  that  the  Statute  of  Anne  did  not  apply 
to  constructive  trustees ;  that  the  late  act,  6  Geo.  IV.  c.  74,  did  not,  as  he 
conceived,  apply ;  that  the  only  distinction  was  that  the  late  statute  ex- 
tended to  infant  trustees  having  an  interest,  and  to  cases  where  there  were 
executory  trusts  to  be  performed ;  that  the  circumstance  of  there  being  a 
decree  did  not  make  any  difference ;  because  a  decree  declaring  an  infant 
to  be  a  trustee,  must  give  him  a  day  to  show  cause,  when  he  came  of  age, 
and  could  only  direct  him  to  convey  when  he  should  come  of  age,  unless  he 
should  show  cause  against  it;  a  decree,  therefore,  could  not  enable  the  Court 
to  direct  him  to  convey  before  he  came  of  age,  and,  therefore,  could  not 
make  him  a  trustee  within  the  statute.     The  consequence  was,  that  the 


en.  xxxviri.]  parties  to  actions.  191 

plaintiffs  could   not   now  procure  a  conveyance,  and,  therefore,  the    bill 
must  be  dismissed  with  costs."     lb.  551. 

The  Court  refused  to  declare  an  infant  Customary  heir  of  copyhold  prem- 
ises to  be  a  trustee  within  the  Statute  of  Anne,  and  to  direct  him  to  surren- 
der to  one  who  had  purchased  from  the  ancestor  for  valuable  cons^ideration, 
which  was  actually  paid.  So  held,  on  a  motion  made  to  confirm  a  report, 
which  found  those  facts,  and  that  the  infant  was  a  trustee  within  the  7th  of 
Anne  ;  on  the  ground  that  it  was  an  ex  parte  proceeding,  and  non  constat 
that  the  ancestor  was  competent  to  sell.    Ex  paiie  Janaway,  7  Price,  679. 

Where  a  father  and  minor  son  covenant  to  convey  lands  on  valuable  con- 
sideration, after  the  son  comes  of  age  the  father  may  be  decreed  to  procure 
his  son  to  convey.     Anon.  2  Cha.  Ca.  53. 

Questions  have  also  arisen  as  to  the  rights  and  duties  of  married  women, 
in  reference  to  the  sale  or  purchase  of  lands.  The  point  upon  which  there 
,bas  been  most  difference  of  opinion  is,  whether  a  hushand  shall  be  compelled 
in  equity  to  execute  a  contract  for  the  sale  and  conveyance  of  his  wife's 
estate.  Mr.  Sugden  (1  Yend.  &  P.  268)  cites  the  following  ancient  case 
from  the  Year  Books,  7  Edw.  lY.  14,  b. :  A  woman  cestui  que  use  and  her 
husband,  joined  in  the  sale  of  her  estate ;  the  wife  received  the  money,  and 
she  and  her  husband  begged  her  feoffee  to  convey  the  estate  to  the  pur- 
chaser, which  he  accordingly  did.  The  husband  died,  and  then  the  wife 
filed  a  bill  against  the  feoffee  for  a  breach  of  trust.  The  cause  was  heard, 
in  the  Exchequer  Chamber,  before  the  Chancellor  and  the  Judges  of  both 
benches,  who  held,  that  the  sale  was  in  fact  the  sale  of  the  husband  ;  that 
the  receipt  of  the  money  by  the  wife  was  immaterial,  and  the  sale  was  void ; 
that  the  trustee  was  answerable  for  the  breach  of  trust ;  and  as  the  pur- 
chaser knew  he  was  buying  a  married  woman's  estate,  that  the  wife  might 
recover  the  estate  from  him. 

Where  a  husband  and  wife,  having  a  joint  power  of  appointment  by  deed 
over  the  wife's  estate,  agreed  in  writing  to  sell  it,  Sir  Thomas  Plummer 
doubted  whether  specific  performance  cannot  be  compelled  against  them ; 
or  whether  the  Court  will  decree  him  to  procure  her  to  join.  Martin  v. 
Mitchell,  2  Jac.  &  Walk.  425. 

Though  a  person  may  agree  to  sell  at  a  price  to  be  fixed  by  arbitration, 
and  the  award  can  be  impeached  only  upon  the  grounds  affecting  all  awards, 
as  fraud  or  gross  nristake  ;  yet,  upon  such  an  agreement,  where  some  of  the 
persons  to  be  bound  were  married  women,  one  of  whom  also  had  not  exe- 
cuted, the  Court  refused  a  specific  performance,  and  dismissed  the  bill, 
leaving  the  plaintiff  to  law.  Emery  v.  Wase,  5  Yes.  846.  Lord  Eldon 
remarked,  upon  the  alarming  doctrine  apparently  sustained  by  some  earlier 
cases,  that  specific  performance  of  the  wife's  contract  will  be  enforced 
specifically  against  the  husband ;  that,  if  a  man  contracts  for  the  estate  of  a 
married  woman,  he  knows  the  property  is  hers.     The  purchaser  is  bound  to 


102  LAW    OP   VENDORS   AND    PURCHASERS,    [cil.  XXXVIII. 

regard  tlio  policy  of  tlie  law  ;  and  what  right  has  lie  to  complain,  if  she  who, 
according  to  law,  cannot  part  with  her  property  but  by  her  own  free  will, 
takes  advantage  of  the  locus  penitenticc ;  and  why  is  he  not  to  take  his  chance 
of  damages  against  the  husband. 

Baron  and  feme,  having  joint  power  to  sell  her  estate,  give  authority  to 
an  agent  to  sell  by  auction  ;  but  he  sells  by  private  contract  for  more  than 
the  price  they  reipiired.  The  buyer  shall  not  compel  specific  performance. 
Daniel  v.  Adams,  Ambl.  495. 

So,  in  Outram  v.  Round,  4  Vin.  Abr.,  Baron,  &c.,  H.  b,  pi.  4,  Lord  Cowper 
said :  "  It  is  a  tender  point,  to  compel  the  husband  by  a  decree  to  compel 
his  wife  to  levy  a  fine,  though  there  have  been  some  precedents  in  the 
Court  for  it.  And  it  is  a  great  breach  upon  the  wisdom  of  the  law, 
■which  secures  the  wife's  lands  from  being  aliened  by  the  husband,  without 
her  free  and  voluntary  consent,  to  lay  a  necessity  upon  the  wife  to  part 
with  her  lands,  or  otherwise  to  be  the  cause  of  her  husband's  lying  in 
prison  all  his  days." 

But,  on  the  other  hand,  in  Hall  v.  Hardy,  3  P.  Wms.  189,  Sir  Joseph 
Jekyll,  M.  R.,  said :  "  There  have  been  a  hundred  precedents,  where,  if  the 
husband  for  a  valuable  consideration  covenants  that  the  wife  shall  join  with 
him  in  a  fine,  the  Court  has  decreed  the  husband  to  do  it ;  for  that  he  has 
undertaken  it,  and  must  lie  by  it,  if  he  does  not  perform  it."  And  the  reason 
is  said  to  be,  (Winter  v.  D'Evneux,  3  P.  Wms.  189,  n.,)  that  in  all  such  cases 
it  is  to  be  presumed,  that  the  husband,  when  he  enters  into  such  a  covenant, 
has  first  gained  the  wife's  consent. 

A  husband  was  decreed  to  join,  and  to  procure  his  wife  to  join,  in  a  con- 
veyance of  her  estate  pursuant  to  agreement,  or  to  refund  a  sum  received 
by  the  husband ;  where  the  Court  would  not  make  a  personal  decree  on 
her.     Sedgwick  v.  Hargrave,  2  Ves.  67. 

Freeholds  were  conveyed  by  lease  and  release  to  trustees,  to  the  use  of  a 
feme  covert,  for  her  separate  use  for  life,  or  to  the  use  of  such  person  as 
she  should  by  writing  sealed,  &c.,  appoint;  and,  in  default  of  appointment, 
in  trust  to  pay  the  rents  to  her  for  her  separate  use.  The  husband  and  wife, 
by  writing  not  under  seal,  for  valuable  consideration,  undertook  to  execute 
a  mortgage  of  the  property,  when  required.  The  husband  died,  and  no 
mortgage  had  been  executed.  Held,  the  agreement  was  binding  upon  the 
wife.     Stead  v.  Nelson,  2  Beav.  245. 

A  husband  covenants  in  marriage  articles,  in  six  months  after  the  death 
of  his  mother  and  his  coming  in  possession  of  the  estate  in  jointure  to 
settle,  &c.  He  dies  in  the  mother's  life,  leaving  no  issue,  and  the  estate 
comes  to  his  heir.  He  shall  not  be  compelled  by  the  wife  to  a  specific  per- 
formance.    Whitmel  v.  Farrel,  1  Ves.  256. 

A  conveyanae  to  a  bond  fide  purchaser,  under  a  decree  against  a  feme 
covert  for  a  sale  of  part  of  her  separate  estate,  cannot,  after  an  acquiescence 


CH.  XXXVIII.]  PARTIES   TO   ACTIONS.  193 

of  twenty-two  years,  be  set  aside  ;  notwithstanding  the  purchase-money  may 
have  been  misapplied.  So  an  order,  disposing  of  the  real  estate  of  a  feme 
covert,  made  on  her  consent,  and  acquiesced  in  during  her  life,  will  not  be 
set  aside  on  a  doubtful  case,  made  many  years  afterwards,  by  her  represen- 
tatives.    Burke  v.  Crosbie,  1  Ball  &  B.  489. 

By  deed  of  separation,  the  husband  (a  trader  liable  to  the  bankrupt  laws) 
covenants  with  a  trustee  for  the  wife,  in  consideration  of  being  indemnified 
from  all  debts  and  engagements  which  might  be  contracted  by  her  during 
the  separation,  to  release  his  remainder  in  fee  to  certain  estates,  (of  which 
he  was  tenant  for  life,  remainder  to  the  wife  for  life,  remainder  to  the  issue 
of  the  marriage,  remainder  to  himself  in  fee,)  to  such  uses,  &c.,  as  the  wife 
shall  by  deed  or  will  appoint,  with  power  to  the  wife  to  revoke  them.  The 
■wife  executes  the  power  by  deed,  which  she  retains  in  her  possession,  and 
afterwards  alters  and  reexecutes.  neld,^rs;,  that  the  covenant,  although 
entered  into  on  occasion  of  a  separation  between  husband  and  wife,  was  yet 
binding  in  equity,  being  made  to  a  third  party  ;  secondly,  that  it  might  be 
supported  against  creditors,  under  the  Statute  of  James,  by  the  considera- 
tion of  indemnity  against  the  wife's  debts  and  engagements ;  thirdly,  that, 
the  deed  of  appointment  containing  no  power  of  revocation,  although  it 
was  contained  in  the  instrument  creating  the  original  power,  the  reexecution 
was  void,  and  the  original  appointment  therefore  was  decreed  to  be  carried 
into  execution.     Worrall  v.  Jacob,  3  Meriv.  268. 

An  attendant  term  having  become  vested  in  the  wife  of  the  owner  of  the 
inheritance,  as  administratrix  of  the  trustee,  and  her  husband  becoming 
bankrupt,  his  assignees  agree  to  sell  the  estate,  and  file  a  bill  for  specific 
performance  of  the  agreement,  pending  which  suit  the  husband  dies.  Held, 
the  widow  was  not  entitled  to  dower,  that  she  was  bound  to  assign  the  term 
to  th* purchaser,  and  that  he  was  bound  to  accept  the  title.  Mole  v.  Smith, 
Jac.  490. 

In  this  connection  may  be  considered  some  miscellaneous  points,  con- 
nected with  the  respective  rights  and  duties  oi particular  tenants,  as  growing 
out  of  the  sale  and  purchase  of  lands. 

A  tenant  in  tail  is  bound  by  his  agreement  to  convey.  But  the  issue  in 
tail  is  not  bound.     Ross  v.  Ross,  1  Cha.  Ca.  171. 

Though  a  decree  be  made  against  tenant  in  tail,  who  had  agreed  to  sell 
his  estate,  and  he  stands  out  all  process  of  contempt  for  not  obeying  it,  yet 
his  issuS  are  not  bound  by  it.     Powell  v.  Powell,  Prec.  Cha.  278. 

The  ground  of  these  decisions  is  said  to  be,  that  the  issue  in  tail  claim 
per  formam  dojii,  from  the  creator  or  author  of  the  estate  toil,  not  from  the 
tenant  in  tail,  who  undertakes  to  bind  them.     1  Sugd.  264. 

A  tenant  for  life,  with  a  leasing  power,  agrees  to  make  a  lease  pursuant  to 
the  power.  This  agreement  shall  bind  the  remainder-man.  Shannon  v. 
Bradstreet,  1  Scho.  &  Lef.  52. 

VOL.  II.  17 


194  LAW   OF   VENDORS   AND   PURCHASERS.     [CH.  XXXVIII. 

Where,  by  tlio  tcnns  of  a  ilcvisii  or  settlement,  the  consent  of  the  tenant 
for  life  is  necessary  to  a  sale  by  the  trustees,  upon  a  bill  filed  by  them  to 
enforce  a  sale,  they  must  prove  the  requisite  consent  before  the  filing  of  the 
bill,  not  merely  before  the  hearing,  in  order  to  obtain  an  immediate  decree 
at  the  hearing.     Adams  v.  Broke,  1  You.  &  Coll.  627. 

Specific  performance  of  a  sale  of  an  estate  in  fee  was  decreed,  in  favor 
of  a  vendor  who  at  the  time  of  the  contract  was  tenant  for  life  only ;  the 
purchaser  not  having  rejected  the  purchase  as  soon  as  he  had  ascertained 
the  real  interest  of  the  vendor,  and  tlie  vendor  being  able,  by  means  of  the 
consent  of  the  remainder-man,  to  make  a  good  prima  facie  title  to  the  fee 
simple  at  the  hearing.     Salisbury  v.  Hatcher,  2  You.  &  Coll.  54. 

A  sale  under  a  decree,  all  necessary  parties  being  before  the  Court,  will 
not  be  set  aside  after  a  lapse  of  time,  though  the  surplus  of  th#  purchase- 
money  was  directed  to  be  paid  to  the  tenant  for  life  ;  there  being  no  surplus 
and  the  sale  appearing  to  be  properly  conducted.  Lightburne  v.  Swift,  2 
Ball  &  B.  207. 

Where  a  landloi'd,  or  lessor,  in  1781,  by  an  ejectment  for  non-payment  of 
rent,  entered  upon  the  possession  of  a  widow,  tenant  for  life  of  a  lease  for 
lives  renewable  forever,  remainder  to  her  children,  infants ;  and  the  chil- 
dren, in  1806,  long  after  they  came  of  age,  and  after  the  lessor  had  been  in 
undisputed  possession  for  ujjwards  of  twenty-five  years,  filed  their  bill  for 
relief;  held  by  the  House  of  Lords,  reversing  a  decree  of  the  Irish  Court 
of  Exchequer,  that  there  was  no  ground  whatever  in  this  case  for  inter- 
ference in  equity.     Baker  y.  Morgan,  2  Dow,  52G. 

It  has  been  held  that,  under  some  circumstances,  specific  performance  of 
an  agreement  may  be  decreed  against  one  since  become  a  lunatic.  Owen 
V.  Davies,  1  Ves.  82. 

Upon  a  bill  for  specific  performance  of  a  contract  overreached  jby  a 
commission  of  lunacy,  the  plaintiff  not  having  traversed  the  inquisition,  an 
issue  was  directed,  whether  the  defendant  was  a  lunatic  at  the  execution ; 
if  so,  whether  he  had  lucid  intervals,  and  whether  the  contract  was  exe- 
cuted during  a  lucid  interval ;  the  difficulties  in  executing  the  contract, 
which  was  for  the  sale  of  an  estate  vested  in  the  lunatic,  namely,  that  the 
price  was  to  be  fixed  by  persons  to  be  nominated,  not  appearing  strong 
enough  to  preclude  the  jirevious  inquiry,  with  a  view  to  performance ;  and 
the  plaintiff  being  willing  to  take  the  title.     Hall  v.  Warren,  9  Ves.  605. 

Upon  this  subject,  Mr.  Sugden  I'emarks  (1  Vend.  &  P.  271)  :  "  An  agree- 
ment by  a  lunatic  cannot  of  course  be  carried  into  a  specific  execution  ;  but  the 
change  of  condition  of  a  person  entering  into  an  agreement  by  becoming 
lunatic,  will  not  alter  the  right  of  the  parties  ;  which  will  be  the  same  as  be- 
fore, provided  they  can  come  at  the  remedy.  As  if  the  legal  estate  is  vested 
in  trustees,  a  Court  of  Equity  will  decree  a  specific  performance ;  and  the 
act  of  God  will  not  change  the  right  of  the  parties  ;  but  where  the  legal  estate 


CH.  XXXVIII.]  PARTIES   TO   ACTIONS.  195 

■was  vested«in  the  lunatic  himself,  that  would  formerly  have  prevented  the 
remedy  in  equity,  and  left  it  at  law ;  unless  the  purchaser  was  satisfied  with 
the  enjoyment  of  the  estate  which  a  decree  would  give  him,  and  chose  to 
encounter  the  inconvenience  of  leaving  the  legal  estate  outstanding  in  the 
lunatic,  in  which  case  a  specific  performance  would  have  been  decreed  in 
his  favor.  But  this  anomaly  is  now  removed  by  the  1  Will.  IV.  c.  65,  which 
provides,  that  where  any  2)erson  has  contracted  to  sell  an  estate,  and  after- 
wards becomes  lunatic,  and  a  specific  performance  of  such  contract,  either 
wholly  or  so  far  as  the  same  remains  to  be  performed,  has  been  decreed 
either  before  or  after  such  lunacy,  it  shall  be  lawful  for  the  committee,  by 
the  direction  of  the  Lord  Chancellor,  to  convey  in  pursuance  of  such  de- 
cree, and  the  purchase-money,  or  so  much  as  remains  unpaid,  is  to  be  paid 
to  the  committee." 

The  relation  of  i^rinclpal  and  agent  has  given  rise  to  some  cases,  M'hich 
maj'  be  referred  to  in  this  connection.     (See  Chap.  5,  §  36.) 

A.,  as  the  agent  of  B.,  the  owner  of  a  landed  estate,  enters  into  an  agree- 
ment for  the  sale  of  it  with  C,  who  appears  to  act  on  his  own  account,  but 
in  fact  is  the  agent  of  D. ;  and  A.  and  C.  bind  themselves  in  a  penalty  for 
the  performance  of  the  agreement.  Whereupon  C.  pays  A.  part  of  the 
purchase-money  as  a  deposit.  Held,  that,  upon  a  breach  of  the  conditions 
of  sale  on  the  part  of  the  vendor,  an  action  for  money  had  and  received 
lies  at  the  suit  of  D.  against  B.,  to  recover  back  the  deposit,  without  proof 
of  the  money  being  paid  over  by  A.  to  B.  Duke,  &c.  v.  Worthy,  1  Camp. 
337. 

On  a  sale  of  premises  by  auction,  the  memorandum  was  signed  by  the 
auctioneer  as  agent  for  the  purchaser,  and  by  the  vendor's  attorney,  sub- 
scribing himself  as  "  agent  of  the  said  S.  S.,"  the  vendor.  The  purchaser 
paid  his  deposit  to  the  attorney,  who  gave  a  receipt,  signed  by  himself  as 
"  agent  for  S.  S."  The  sale  going  off  through  the  vendor's  default,  and  the 
deposit-money  not  being  returned  ;  held,  that  the  purchaser  could  not  bring 
an  action  of  money  had  and  received  against  the  attorney,  for  that  he  was 
not  a  stakeholder,  but  merely  the  vendor's  agent,  and  payment  of  the  de- 
posit to  him  was  payment  to  the  vendor.  Bamford  v.  Shuttleworth,  11  Ad. 
&  Ell.  926. 

One  who  has  made  a  contract  as  agent  for  a  third  person  cannot  sue  as 
principal,  without  giving  notice  to  the  defendant,  before  action  brought,  that 
he  is  the  party  really  interested.     Bickerton  v.  Burrell,  5  Mau.  &  Sel.  383. 

Bill  by  an  incorporated  railway  company  for  specific  pe|^ormance  of  a 
contract  for  purchase,  entered  into  by  their  agent.  Defence,  that  it  did  not 
appear  that  the  agent  was  authorized  under  the  corporate  seal,  and  there- 
fore that  there  was  no  mutuality.  Defence  overruled,  on  the  ground  that 
the  company  had,  before  the  bill  was  filed,  not  only  acted  on  the  contract  by 


196  LAW    OF   VENDORS    AND    PURCHASERS.    [CH.  XXXVIII. 

entering  into  possession,  but  actually  made  a  railroad  over  the  lan^.  London, 
&c.  V.  AVinter,  1  Cra.  &  Phil.  57. 

The  Court  refused  to  discharge  the  solicitor  in  the  cause  from  a  purchase 
before  the  Master,  with  the  view  of  preventing  a  sale  at  an  undervalue. 
Nelthorpe  v.  Pennynian,  14  Ves.  517. 

A.  purchased  for  B.,  but  without  authority,  an  estate  sold  under  a  decree. 
B.  died  without  adopting  the  purchase.  The  order  nisi  was  nevertheless 
obtained.  The  Court  refused  to  order  B.'s  executors  to  pay  the  purchase- 
money,  and,  on  the  heir's  declining  the  purchase,  discharged  the  order  nisi, 
and  directed  a  resale.  It  was  held  that,  if  the  executors  of  a  purchaser 
under  a  decree  refuse  to  pay  the  purchase-money,  they  cannot  be  compelled 
to  pay  it,  unless  a  suit  be  instituted  by  the  heir.     Lord  v.  Lord,  I  Sim.  503. 


CH.  XXXIX.]  PLEADING.  197 


CHAPTER   XXXIX. 


PLEADING. 


1.  The  allegations  required  by  law  from  the  respective 
parties,  in  suits  relating  to  the  sale  and  purchase  of  land, 
have  of  course  been  incidentally  referred  to,  in  treating  of 
their  mutual  rights  and  obligations  ;  pleading  being  in  truth 
nothing  more  than  a  statement  upon  the  record  of  those 
reciprocal  agreements  and  relations,  which  constitute  the 
claims  of  such  parties  on  the  one  side,  and  the  defences 
against  such  claims  on  the  other.  Only  a  brief  additional 
notice  of  the  subject  is  required  in  the  present  connection. 

2.  As  has  been  seen,  (Chapters  12,  26,  29,)  the  question  is 
often  raised,  how  far  performance  on  one  side  is  a  condition 
precedent  to  a  suit  for  non-performance  on  the  other ;  as 
also,  how  far  a  tender,  or  offer,  or  mere  readiness,  is  equiva- 
lent, for  this  purpose,  to  actual  performance.  The  authorities 
upon  these  points  are  somewhat  contradictory,  and  it  is 
difficult  to  draw  from  them  any  general  rule,  not  liable  to  be 
modified  by  the  circumstances  of  each  particular  case.  We 
propose  to  refer,  in  this  connection,  only  to  those  cases,  in 
which  these  questions  arose  directly  upon  the  pleadings. 

3.  In  West  v.  Emmons,'  the  defendant  covenanted  to  exe- 
cute to  the  plaintiff,  on  or  before  a  specified  day,  a  deed  of 
certain  land,  and  the  plaintiff"  covenanted  that,  upon  execu- 
tion of  the  deed,  he  would  secure  the  purchase-money  by 
his  bond,  and  a  mortgage  upon  the  premises.  Tlie  purchaser 
sued  the  vendor  for  not  conveying  according  to  his  agree- 
ment, and  averred  his  readiness  to  execute  the  bond  and 

1  5  Johns.  179. 
17* 


198  LAW    OP    VENDORS   AND    PURCHASERS.       [cil.  XXXIX. 

mortgage,  and  that  although  he  had,  at  the  time  specified  in 
the  agreement,  requested  the  defendant  to  execute  the  deed, 
he  had  not  done  so.  Upon  demurrer  to  the  declaration,  it 
was  held,  that  the  averment  of  the  plaintiff's  readiness  to 
perform  on  his  part,  and  that  the  defendant  was  requested 
to  execute  the  deed  and  had  refused,  was  all  that  was  neces- 
sary to  maintain  the  action,  (a) 

4.  But  a  somewhat  different  doctrine  has  been  held  in 
other  cases. 


(o)  The  same  principle  is  illustrated  by  some  cases  relating  to  personal 
property. 

In  Calloncl  i\  Briggs,  1  Salk.  102,  the  agreement  was,  that  the  defendant 
should  pay  so  much  money,  six  months  after  the  bargain,  the  plaintiif  trans- 
ferring stock.  The  plaintiff  at  the  same  time  gave  a  note  to  the  defendant 
to  transfer  the  stock,  the  defendant  paying,  &c.  Holt,  Ch.  J.,  says  :  "  If 
either  party  would  sue  upon  this  agreement,  the  plaintiff  for  not  paying,  or 
the  defendant  for  not  transferring,  the  one  must  aver  and  prove  a  transfer 
or  a  tender,  and  the  other  a  payment  or  a  tender." 

In  Rawson  v.  Johnson,  1  E.  208,  Lord  Kenyon  goes  into  a  consideration 
of  the  former  cases,  and  remarks  as  follows  :  "  One  man  agrees  to  do  a 
certain  act  in  consideration  of  another  man  doing  another  act ;  the  acts  are 
to  be  done  at  the  same  time  and  place ;  one  of  the  parties  goes  there  in- 
tending to  do  his  part,  and  the  other  stays  away  altogether  ;  the  former  is 
obliged  to  bring  his  action  for  this  breach  of  the  agreement,  and  he  pleads 
according  to  the  truth  of  the  fact,  that  he  was  at  the  time  and  place  ap- 
pointed, ready  to  have  received  the  other's  goods  and  to  have  paid  the  stip- 
ulated price  for  them,  which  is  all  that  he  was  bound  to  do,  and  that  nobody 
was  there  on  the  part  of  the  defendant,  or  that  the  goods  were  not  there 
ready  to  be  delivered ;  would  it  be'  any  answer  to  say  that  he  ought  to  have 
pleaded  a  tender  of  the  money.  Now  this  case  is  the  same  in  effect ;  the 
defendant  undertook  to  deliver  the  malt  when  he  should  be  requested,  and 
the  plaintiffs  plead  that  they  made  the  request  to  him,  and  were  ready 
and  willing  to  have  accepted  and  paid  for  it,  but  that  he  did  not  deliver  it 
Vfhen  requested,  or  at  any  other  time,  but  refused  so  to  do.  To  be  sure, 
imder  this  covenant  the  plaintiffs  must  have  proved  that  they  were  pre- 
pared to  tender  and  pay  the  money  if  the  defendant  had  been  ready  to  have 
received  it  and  to  have  delivered  the  goods ;  but  it  cannot  be  necessary  in 
order  to  entitle  them  to  maintain  their  action  that  they  should  have  gone 
through  the  useless  ceremony  of  laying  the  money  down  in  order  to  take  it 
up  again."  See  Tinney  v.  Ashley,  15  Pick.  552  ;  Thayer  v.  Turner,  8  Met. 
550;  Thornton  v.  Wyman,  12  Wheat.  189. 


CH.  XXXIX. J  PLEADING.  199 

5.  Ill  an  agreement  for  the  sale  and  purchase  of  land,  it 
was  stipulated  that  $500  of  the  price  should  be  paid  in  cash, 
$500  by  a  note  at  ninety  days  with  approved  indorsement, 
and  the  residue  secured  by  bond  and  mortgage.  Held,  the 
agreement  was  to  be  executed  on  both  sides  at  the  same 
time,  and  neither  party  could  maintain  an  action  without 
showing  performance,  or  an  offer  to  perform,  on  his  part. 
An  averment  of  readiness  to  perform  is  not  sufficient.  Har- 
ris, J.,  says :  "  The  plaintiff  says  he  was  ready  and  willing 
to  fulfil  his  obligations  by  virtue  of  the  instrument.  Assum- 
ing that  this  is  a  sufficient  averment  of  the  fact  that,  at  the 
day  specified,  he  was  ready  and  willing  to  pay  for  the  prop- 
erty to  be  conveyed,  according  to  the  terms  of  his  agreement, 
which  is  certainly  quite  as  much  as  the  plaintiff  can  claim 
for  his  allegation,  there  is  no  averment  that  he  offered  to 
perform  the  agreement  on  his  part,  or  that  he  requested 
Southwick  to  convey;  or  that  he  gave  him  notice  of  his 
readiness  to  perform."  ^ 

6.  In  Phillips  v.  Fielding,^  Lord  Loughborough,  after  cen- 
suring in  very  strong  terms  the  length  of  the  declaration, 
held  that  it  was  clearly  bad,  on  both  the  grounds  insisted  on 
in  the  argument ;  first,  because  the  plaintiff  had  not  distinctly 
averred  a  sufficient  performance  of  his  part  of  the  agreement, 
by  stating  an  actual  surrender  to  the  defendant  or  a  tender 
and  refusal ;  and  secondly,  because  he  had  not  shown  what 
title  he  had  to  the  estate  ;  for  whatever  his  interest  was,  it 
ought  to  have  been  specially  set  forth.  Gould,  J.,  was  of  the 
same  opinion.  He  remembered  the  case  of  an  indictment 
for  forgery,  in  which  there  were  three  counts  for  the  forgery, 
and  three  for  the  utterance ;  in  the  first  count  the  prisoner 
was  particularly  described,  and  the  Grand  Jury  having  re- 
jected the  three  first  counts,  an  objection  was  raised,  that  the 
remaining  counts  described  him  "  the  said  A.  B."  by  refer- 
ence to  the  first;  but  all  the  Judges  held,  that  the  description 
was  good,  and  that   the  latter  counts  might  refer  to  the 

1  Van  Schaick  v.  Winne,  16  Barb.  89-93.  ^^  2  H.  Bl.  131. 


200  LAW    OF    VENDORS    AND    PURCHASERS.        [CH.  XXXIX. 

former.  So  in  the  present  case,  the  declaration  which  was 
swelled  to  a  very  improper  and  uimecessary  length,  might 
have  referred  generally  to  the  conditions  of  sale  set  forth  in 
the  first  count,  without  repeating  them  over  again  in  the 
subsequent  counts." 

7.  Sale  by  auction  of  a  copyhold  estate.  It  was  stipu- 
lated that  the  purchaser  should  pay  down  a  deposit,  and 
sign  an  agreement  for  payment  of  the  remainder  of  the  pur- 
chase money  at  a  certain  time,  on  having  a  good  title,  and 
have  a  proper  surrender  of  the  estate,  on  such  payment. 
In  an  action  brought  by  the  seller,  for  the  non-performance 
of  the  conditions,  held  not  sufficient  to  state,  that  the  plain- 
tiff had  been  always  ready  and  willing,  and  frequently  of- 
fered, to  make  a  good  title,  and  to  make  a  proper  surrender 
on  payment  of  the  purchase-money ;  but  it  should  be  averred, 
that  the  seller  actually  made  a  good  title,  and  surrendered 
the  estate,  or  that  there  was  a  tender  and  refusal,  and  also 
what  title  the  seller  had.' 

8.  Questions  have  sometimes  arisen,  as  to  the  right  of  one 
party  to  the  suit  to  call  for  a  more  specific  statement  of  the 
claim  set  up  by  the  other. 

9.  Thus  it  was  held,  that  the  Court  will  not  compel  a 
plaintiff,  suing  for  the  breach  of  an  agreement,  and  assigning 
by  way  of  special  damage  that  he  has  incurred  certain  ex- 
penses, to  furnish  particulars  of  such  special  damage.^ 

10.  In  an  action  for  money  had  and  received  by  the  pur- 
chaser against  the  vendor  to  recover  the  deposit,  the  con- 
ditions of  sale  not  being  complied  with ;  the  defendant,  by 
a  Judge's  order,  may  obtain  a  particular  of  the  grounds  of 
action  to  which  the  plaintiff  will  be  confined  at  the  trial. 
But,  if  there  has  been  no  particular,  the  plaintiff  may  rely 
upon  a  breach  never  before  mentioned  to  the  defendant.^ 

11.  In  assumpsit  for  the  breach  of  an  agreement  to  sell 
an  estate,  the  Court  refused  to  allow  the  defendant  to  select 

'  Phillips  V.  Fielding,  2  H.  Blackst.  "  Eetallick  v.  Hawkes,  1  Mees.  & 
123.  Wels.  573. 

8  Squire  v.  Tod,  1  Camp.  Cas.  293. 


CH.  XXXIX.]  PLEADING.  201 

certain  of  several  allegations  of  damage  contained  in  a  single 
count,  and  pay  money  into  Court  on  those  particular  allega- 
tions, the  whole  count  taken  together  being  in  substance  a 
demand  of  unliquidated  damages.  It  was  said,  as  the  seller 
had  broken  his  contract,  the  Court  would  not  help  him  so  as 
to  compel  the  plaintiff  to  go  to  trial  at  his  own  risk.' 

12.  In  assumpsit  upon  a  contract  for  the  sale  of  a  house, 
with  counts  to  recover  back  the  deposit,  the  plaintiff,  having 
in  his  first  count  alleged  that  the  defendant,  who  was  to 
make  a  good  title,  had  delivered  an  abstract  which  was  "  in- 
sufficient, defective,  and  objectionable ; "  the  Court  obliged 
the  plaintiff  to  give  a  particular  of  all  objections  to  the  ab- 
stract arising  upon  matters  of  fact.^  So,  in  an  action  for 
money  had  and  received,  brought  to  recover  back  the  deposit 
paid  to  the  auctioneer  upon  the  sale  of  an  estate,  on  the 
ground  of  objections  to  the  title,  the  defendant  is  entitled  to 
particulars  of  the  objections  arising  upon  matters  of  fact, 
but  not  of  objections  in  point  of  law.  The  latter,  as  Mr. 
Baron  Parke  observed,  "  must  find  out  themselves."  ^ 

13.  The  allegations  in  the  declaration  may  determine  the 
amount  of  damages  to  be  recovered  by  the  plaintifl".  Thus, 
in  an  action  by  a  purchaser  against  the  vendor,  the  declara- 
tion stated  that  by  articles  the  defendant,  in  consideration 
of  <£  2,115,  agreed  that  he  would,  on  or  before  the  25th  day 
of  March  next,  well  and  effectually  convey  the  estate  to  the 
plaintiff,  &c.,  with  a  good  title  ;  and  the  plaintiff  agreed,  that 
on  the  said  25th  day  of  March,  on  having  such  conveyance, 
he  would  pay  the  defendant  the  purchase-money ;  and,  in 
case  the  purchase  should  not  be  completed  on  that  day, 
would  pay  interest  on  the  purchase-money  before  it  was 
completed.  Breach,  that,  although  the  plaintiff  was  always, 
from  the  making  the  agreement  until  and  upon  the  said 
25th  day  of  March,  ready  and  willing  to  accept  a  convey- 
ance and  to  pay  the  purchase-money,  whereof  the  defendant 

1  Hodges  V.  Litchfield,  9  Bing.  713.        .  ^  Roberts  v.  Rowlands,  3  Mees.  & 

2  Collett    V.   Thompson,  3   Bos.    &    Wels.  543. 
Pull.  246. 


202  LAW    OF   VENDORS   AND   PURCHASERS.       [cil.  XXXIX. 

had  notice,  &c.,  yet  the  defendant  did  not  on  the  day  and 
year  last  aforesaid,  or  at  any  other  time  whatsoever,  make  a 
good  title  to  the  plaintiff"  of  the  estate,  nor  had  he  at  any 
time  any  such  .title,  &c. ;  alleging  damage  by  expenses  in- 
curred in  investigating  the  title,  and  loss  of  interest  on  the 
purchase-money  while  lying  at  a  banker's.  Held,  that,  upon 
this  declaration,  time  was  clearly  of  the  essence  of  the  con- 
tract ;  that  the  plaintiff"  was  under  no  necessity  of  keeping 
his  money  at  the  banker's  after  the  25th  of  March ;  and  that 
the  plaintiff"  could  not  recover  for  any  expenses  or  loss  of 
interest  subsequent  to  that  time.' 

14.  A  suit  in  equity,  between  a  vendee  and  an  adverse- 
claimant  of  the  land  sold,  often  gives  rise  to  questions  as  to 
the  form  of  pleading  the  vendor's  title.  Upon  this  subject  it 
is  held,  that  the  plea  of  a  purchase  for  valuable  consideration 
must  allege  seizin  and  possession  in  the  vendor.^  So  a  plea 
of  title  derived  from  one  having  only  a  particular  estate,  and 
not  in  possession,  must  set  out  how  the  person  became 
entitled.^ 

15.  To  a  bill  brought  by  an  heir,  the  defendant  pleaded, 
that  he  was  a  purchaser  for  valuable  consideration.  Held 
bad,  because  he  did  not  plead  a  purchase  from  one  of  the 
plaintiff''s  ancestors ;  and  a  purchase  from  a  stranger,  who 
might  have  no  title,  was  held  no  good  plea,  and  the  defend- 
ant was  ordered  to  answer.* 

16.  A  plea  of  a  bare  title  only,  without  setting  forth  any 
consideration,  will  not  protect  a  defendant  from  giving  an 
answer  to  the  title  set  up  by  the  plaintiff".^ 

17.  Where  a  defendant,  by  his  answer,  insists  that  he  is  a 
purchaser  for  valuable  consideration,  and  without  notice, 
proof  of  payment  of  the  purchase-money  is  an  essential  part 
of  the  defence ;  and,  if  the  defendant  fails  at  the  hearing  to 

1  Metcalfe  v.  Fowler,  6  Mecs.  &  W.  *  Seymour  v.  Nosworth,  2  Freem. 
830,  834.  128;  5  Ch.  II.  23;  Nelson,  Ch.  K.  135. 

^  Trcvanian  v.  Mosse,  1  Vern.  246.  ^  Brereton  v.  Gamul,  2  Atk.  241. 

2  Hughes  V.  Garth,  Ambl.  421. 


CH.  XXXIX.]  PLEADING.  203 

prove  this,  the  Court  will  not  allow  the  cause  to  stand  over, 
in  order  to  supply  such  defect.^ 

18.  Plea  to  a  bill  for  possession,  a  purchase  for  a  valuable 
consideration,  and  that  the  money  was  bond  fide  secured  to 
be  paid.  Held,  that,  being  only  secured,  it  might  never  be 
paid,  and  the  plea  was  therefore  overruled.^ 

19.  A  purchaser,  if  he  denies  notice,  need  only  set  forth 
the  purchase  deed,  and  plead  his  purchase  in  bar  to  the  dis- 
covery of  the  title-deeds.'^ 

20.  On  a  plea  of  purchase  for  valuable  consideration, 
without  notice  of  the  plaintiff's  title,  it  is  sufficient  to  aver, 
that  the  person  who  conveyed  was  seized  or  pretended  to  be 
seized,  when  he  executed  the  purchase-deeds ;  but,  where  a 
purchaser  sets  up  a  fine  and  non-claim  as  a  bar,  he  must 
aver  that  the  seller  was  actually  seized.* 

21.  A  defendant  cannot,  by  answer,  protect  himself  from 
answering  fully,  on  the  ground  of  his  being  a  purchaser  for 
valuable  consideration.^ 

1  Molony  v.  Kernan,  2  Dru.  &  War.  Head  v.  Egerton,  3  P.  Wms.  279  ;  Jack- 
31.  son  V.  Roe,  4  Russ.  514. 

2  Hardingham  v.  Nicholls,  3  Atk.  ^  Ovey  v.  Leighton,  2  Sim.  &  Stii. 
304.  234  ;  Portarlington  v.  Soulby,  6  Sim. 

3  Aston  V.  Aston,  3  Atk.  302.  356. 
*  Story  V.   Windsor,   2   Atk.   630  ; 


204  LAW   OF    VEXDOllS    AND    PURCHASERS.  [CH.  XL. 


CHAPTER    XL. 


LIMITATION.: — LAPSE   OF   TIME. 


1.  In  connection  with  the  general  subject  of  remedies^  we 
may  properly  give  some  farther  consideration  to  the  effect 
upon  the  respective  rights  of  vendor  and  vendee  of  the  lapse 
of  time  after  thos'e  rights  accrued,  and  previous  to  any  pro- 
cess of  law  for  the  purpose  of  enforcing  them.  We  have 
already  (Chap.  11,)  treated  the  subject  at  some  length,  under 
the  head  of  the  time  of  performance ;  but,  as  constituting  a 
frequent  and  important  point  of  inquiry,  by  way  of  defence 
to  suits  in  law  or  equity,  it  properly  demands  some  further 
notice. 

2.  The  now  prevailing  doctrine  upon  this  subject,  (together 
with  a  concise  view  of  the  heretofore  varying  decisions)  is 
found  in  an  opinion  of  Chancellor  Kent,  in  tljp  case  of  Bene- 
dict V.  Lynch.i     The  facts  of  that  case  were  as  follows  : 

3.  In  March,  1810,  A.  agreed  to  purchase  a  farm  of  B., 
and  to  pay  $250  in  one  year ;  one  third  of  the  residue  in 
one  year  thereafter,  and  the  other  two  thirds  in  two  succes- 
sive years.  Upon  these  payments,  B.  was  to  give  a  deed ; 
and,  if  A.  failed  in  the  payments,  or  either  of  them,  the  agree- 
ment was  to  be  void.  A.  entered  and  made  improvements, 
but  no  payments ;  and  B.,  in  October,  1813,  above  two  years 
after  the  first  default,  supposing  the  agreement  void  or  aban- 
doned, sold  the  farm  to  a  third  person.  A  bill  filed  by  A.  in 
1814,  on  a  tender  of  the  whole  purchase-money,  for  a  specific 
performance  of  the  agreement,  was  dismissed  with  costs. 
Chancellor  Kent  remarks  as  follows  :  ^  "  The  first  question 

1  I  Johns.  Ch.  375.  ^  ibj^. 


en.  XL.]  LIMITATION. LAPSE    OF    TIME.  205 

that  naturally  presents  itself  is,  whether  the  time  was  not 
made  part  of  the  essence  of  the  contract,  and  whetlier  the 
contract  did  not  become  void  on  the  failure  of  the  plaintiff 
to  make  the  first  payment,, in  1811.  Lord  Thurlow  is  said 
to  have  intimated,  in  Gregson  v.  Riddle,^  that  time  could  not 
be  made  of  the  essence  of  the  contract  even  by  a  positive 
stipulation  of  the  parties,  but  there  was  no  decision  on  that 
point;  and  in  other  and  later  cases,^  it  has  been  admitted, 
that  the  parties  may  make  the  time  of  the  essence  of  the 
agreement,  so  that,  if  there  be  a  default  at  the  day  without 
any  just  excuse,  and  without  any  waiver  afterwards,  the 
Court  will  not  interfere  to  help  the  party  in  default.  The 
case  is  not  analogous  to  that  of  a  mortgage,  where  the  only 
object  of  the  security  is  the  payment  of  the  money  and  not 
the  transfer  of  the  estate  ;  and  it  seems  to  be  conducive  to 
the  preservation  of  good  faith,  and  the  rights  of  the  parties, 
that  if  a  contract  of  sale  is  expressly  declared  to  be  vacated 
on  non-performance  by  a  given  day,  that  the  Courts  should 
not  interfere,  as„of  course,  to  annul  such  a  provision.  The 
opinion  of  Lord  Loughborough,  in  Lloyd  v.  Collett,  con- 
tains a  strong  and  decisive  argument  upon  this  point. 
'  There  is  nothing,'  he  observes,  '  of  more  importance  than 
that  ordinary  contracts  between  man  and  man,  which  are  so 
necessary  in  their  intercourse  with  each  other,  should  be 
certain  and  fixed,  and  that  it  should  be  certainly  known 
when  a  man  is  bound,  and  when  not.  There  is  a  difficulty 
to  comprehend  how  the  essentials  of  a  contract  should  be 
different  in  equity  and  at  law.  It  is  one  thing  to  say  the 
time  is  so  essential  that,  in  no  case  in  which  the  day  has  by 
any  means  been  suffered  to  elapse,  the  Court  would  relieve 
against  it,  and  decree  performance.  The  conduct  of  the 
parties,  inevitable  accident,  &c.,  might  induce  the  Court  to 
relieve.  But  it  is  a  different  thing  to  say  the  appointment 
of  a  day  is  to  have  no  effect  at  all ;  and  that  it  is  not  in  the 

1  Cited  in  :  Ves.  268.  -  Lloyd  v.  Collett,  4  Bro.  469 ;  4  Ves. 

689,  n. ;  Seton  v.  Slade,  7  Ves.  265. 

VOL.  II.  18 


206  LAW    OF   VENDORS    AND    PURCHASERS.  [CII.  XL. 

power  of  the  parties  to  contract,  that,  if  the  agreement  is  not 
executed  at  a  particular  time,  they  shall  be  at  liberty  to  re- 
scind it.  In  most  of  the  cases  there  have  been  steps  taken.' 
'  I  want  a  case,'  he  says,  '  to  prove  that  where  nothing  has 
been  done  by  the  parties  this  Court  will  hold,  in  a  contract 
of  buying  and  selling,  a  rule  that  the  time  is  not  an  essential 
part  of  the  contract.  Here  no  step  had  been  taken,  from  the 
day  of  the  sale  for  six  months  after  the  expiration  of  the 
time  at  which  the  contract  was  to  be  completed.  If  a  given 
default  will  not  do,  what  length  of  time  will  do  ?  An  equity 
arising  out  of  one's  own  neglect !  It  is  a  singular  head  of 
equity.'  It  would  be  impossible  for  me  to  add  to  the  per- 
spicuity and  energy  of  this  reasoning ;  and  the  Lord  Chan- 
cellor, in  that  case,  held,  that  as  the  vendor  had  omitted  to 
complete  a  purchase  for  six  months,  being  all  that  time  in 
default,  he  was  considered  as  having  abandoned  the  con- 
tract ;  and  he  said  there  was  no  case  where  no  step  had 
been  taken  by  the  one  party,  and  the  other  had  immediately, 
when  the  time  had  elapsed,  refused  to  perform  the  agree- 
ment, that  a  performance  had  been  decreed."  Chancellor 
Kent  then  proceeds  to  examine  cases,  which  have  been  sup- 
posed to  favor  a  contrary  doctrine.  "  The  case  of  Vernon  v. 
Stephens,^  was  a  bill  brought  by  a  vendee  for  a  specific  per- 
formance after  repeated  defaults ;  but  in  that  case  different 
payments  had  been  made  and  accepted,  and  farther  time 
had  been  given  after  each  default,  by  agreement  in  writing ; 
and  the  final  default,  after  the  last  agreement,  arose  from 
the  death  of  the  original  vendor,  and  a  neglect  for  some  time 
to  take  out  letters  of  administration,  so  that  the  last  default 
was  reasonably  accounted  for ;  and  the  case,  therefore,  proves 
nothing  in  favor  of  a  party  in  default,  without  excuse,  and 
without  a  waiver  from  the  opposite  party.  The  case  of 
Gibson  v.  Patterson,^  in  which  Lord  Hardwicke  was  sup- 
posed to  have  held,  that  non-performance  at  the  time  was 
very  immaterial,  is  proved  to  be  most  inaccurately  reported, 

1  2  P.  Wms.  66.  2  I  Atk.  12. 


CH.  XL,]  LIMITATION. — LAPSE   OF    TIME.  207 

and  that  Lord  Hardwicke  made  no  such  decision  in  that 
case,  and  the  facts  admitted  of  no  such  deduction.^  And, 
indeed,  in  another  case,^  Lord  Hardwicke  lays  down  the  true 
rule  on  this  subject,  when  he  says,  that  it  is  the  business  of 
this  Court  to  relieve  against  lapse  of  time  in  the  perform- 
ance of  an  agreement,  and  especially  where  the  non-perform- 
ance has  not  arisen  by  default  of  the  party  seeking  to  have  a 
specific  performance.  So  it  was  also  held,  in  the  case  of 
Hayes  v.  Camyll,^  as  early  as  1702,  that  where  one  person 
has  trifled  or  shown  a  backwardness  in  performing  his  part 
of  the  agreement,  equity  will  not  decree  a  specific  perform- 
ance in  his  favor,  especially  if  circumstances  are  altered." 
Chancellor  Kent  then  proceeds  to  cite  the  modern  English 
cases..  "  In  Pincke  v.  Curteis,"*  the  suit  was  by  the  vendor 
for  a  specific  performance,  and  the  plaintiff"  had  failed,  for 
near  a  month  after  the  specified  day,  to  complete  his  title  ; 
but  it  appeared  that  the  delay  arose  because  the  title  de- 
pended upon  the  event  of  a  chancery  suit,  and  the  vendee 
was  apprized  of  this  cause  of  the  delay,  and  acquiesced  in 
it,  and  was  willing  to  go  on  with  the  purchase,  and  a  per- 
formance was  consequently  decreed.  The  Chancellor  said, 
that  if  the  vendee  had  called  for  the  deposit  at  the  end  of 
the  time  limited  for  completing  the  purchase,  and  had  in- 
sisted not  to  go  on  with  the  purchase,  the  Court  would  not 
have  compelled  him.  The  case  of  Fordyce  v.  Ford  ^  is  to 
the  same  effect."  So  "  a  purchaser ■>  who  neglects  his  part  of 
the  engagement,  will  be  left  to  his  remedy  at  law  (if  he  has 
any)  though  he  may  have  paid  part  of  the  purchase-money. 
He  cannot  be  suffered  to  lie  by  and  speculate  on  the  rise  of 
the  estate."  The  Chancellor  then  proceeds  to  cite  the  cases 
of  Spurrier  v.  Hancock,  and  Harrington  v.  Wheeler,^  Milward 
V.  Thanet,"   Guest  v.  Hornfray,'^  Seton  v.  Slade,^  Smith  v. 


'  4  Ves.  689,  690,  n.  ;  4  Bro.  497  ;         ^  4  Bro.  494. 

13  Ves.  228,  229.  ^  4  Ves.  667,  686. 

^  1  Ves.  450.  "  5  Ves.  720,  n.     ' 

3  5  Virier,  5.38,  pi.  18.  »  5  Ves.  818. 

*  4  Bro.  329.  '^  1  Ves.  265. 


208  LAW    OF    VENDORS    AND    PUKCUASERS.  [cil.  XL. 

Buniain,^  Paiac  v.  McUer,-  Alley  v.  Descliamps  j'^  and,  upon 
a  thorough  examination  and  analysis  of  the  authorities,  ar- 
rives at  the  conclusion  above  stated. 

4.  The  same  doctrine  has  been  held  by  the  Supreme  Court 
of  the  United  States.  In  Brashier  v.  Gratz,*  Marshall,  C.  J., 
says  :  "  The  rule  that  time  is  not  of  the  essence  of  a  con- 
tract, has  certainly  been  recognized  in  Courts  of  Equity  ; 
and  there  can  be  no  doubt,  that  a  failure  on  the  part  of  a 
purchaser  or  vendor,  to  perform  his  contract  on  the  stipu- 
lated day,  does  not,  of  itself,  deprive  him  of  his  right  to 
demand  a  specific  performance  at  a  subsequent  day,  when 
he  shall  be  able  to  comply  with  his  part  of  the  engagement. 
It  may  be  in  the  power  of  the  Court  to  direct  compensation 
for  the  breach  of  contract  in  point  of  time,  and  in  such  case, 
the  object  of  the  parties  is  effectuated  by  carrying  it  into 
execution.  But  the  rule  is  not  universal.  Circumstances 
may  be  so  changed,  that  the  object  of  the  party  can  be  no 
longer  accomplished,  that  he  who  is  injured  by  the  failure  of 
the  other  contracting  party,  cannot  be  placed  in  the  situation 
in  which  he  would  have  stood,  had  the  contract  been  per- 
formed. Under  such  circumstances,  it  would  be  iniquitous 
to  decree  a  specific  performance,  and  a  Court  of  Equity  will 
leave  the  parties  to  their  remedy  at  law. 

5.  So  in  the  case  of  Garnett  v.  Macon,^  Marshall,  J., 
says  :  "  It  has  been  repeatedly  declared,  both  in  the  Courts 
of  England  and  of  this  country,  that  time  is  not  of  the 
essence  of  a  contract ;  and  that  a  specific  performance  ought 
to  be  decreed  if  a  good  title  can  be  made  at  the  time  of  the 
decree.  This  principle  is  sustained  by  many  decisions,  and 
by  the  practice  of  the  Court  of  Chancery  in  England  to 
refer  it  to  a  Master,  to  report  whether  the  title  be  good  at 
the  time.  But  I  do  not  think  that  the  English  Court  of 
Chancery  has  ever  laid  down  the  broad  principle,  that  time 
was  never  important,  and  that  an  ability  to  make  a  title  at 

1  2  Anst.  527.  *  6  Wheat.  533. 

2  6  Ves.  349.  5  6  Call,  370. 

3  13  Vcs.  224. 


CH.  XL.]  LIMITATION. — LAPSE   OF   TIME.  209 

the  time  of  the  decree,  arrested  all  inquiry  into  the  previous 
state  of  things.  On  the  contrary,  if  a  person  sell  an  estate, 
to  which  he  has  no  title,  he  cannot,  though  he  should  after- 
wards acquire  it,  enforce  the  contract.  There  is  an  implied 
averment  in  every  sale  made  without  explanation,  that  the 
vendor  is  able  to  do  what  he  contracts  to  do.  If  he  is  not, 
and  the  vendee  sustains  an  injury  in  consequence  of  this 
inability,  it  would  seem  unreasonable  that  the  contract  should 
be  enforced  ;  it  would  be  the  more  unreasonable,  if  the 
amount  of  the  injury  should  not  be  the  subject  of  exact 
calculation.  It  is  a  general  rule,  that  he  who  asks  the  aid 
of  a  Court  of  Equity,  must  take  care  that  his  own  conduct 
has  been  exactly  correct.  It  would  be  strange,  if  this  gen- 
eral rule  should  be  totally  inapplicable  to  time,  in  the  execu- 
tion of  a  contract.  If  the  day  be  carelessly  or  accidentally 
passed  over  without  making  a  conveyance,  and  no  serious 
inconvenience  result  from  the  omission,  the  objection  would 
be  captious,  and  would  very  properly  be  discountenanced ; 
but  if  the  vendor  was  unable  to  clear  up  the  title,  until  such 
an  alteration  had  taken  place  in  the  state  of  things,  as 
materially  to  affect  the  parties,  time,  I  think,  cannot  in  rea- 
son, be  deemed  unimportant." 

6.  So  it  is  held  in  Maine,  that  laches  and  negligence  in 
the  performance  of  contracts  are  not  to  be  countenanced  or 
encouraged  ;  and  the  party  seeking  performance  must  show, 
that  he  has  not  been  in  fault,  but  has  taken  all  proper  steps 
towards  performance  on  his  own  part,  and  has  been  ready, 
desirous,  and  prompt  to  perform.  Shepley,  J.,  says :  "  Time 
is  of  the  essence,  where  the  thing  sold  is  of  greater  or  less 
value  according  to  the  effluxion  of  time,  and  the  sale  of  a 
reversion,  and  of  stock,  are  put  as  examples  of  the  rule. 
So  when  a  house  is  known  to  have  been  purchased  for  a 
residence  at  a  particular  time,  and  when  the  parties  have  by 
their  contract  expressly  so  agreed,  time  is  essential,  and  in 
these  cases  no  relief  is  given  against  the  lapse  of  time.  It 
is  not  of  the  essence  of  the  contract,  where  the  object  is 
18* 


210  LAW    OF    VENDORS    AND    I'UKUIIASERS.  [cil.  XL. 

security  for  the  payment  of  money ;  and  in  the  ordinary  case 
of  the  sale  of  an  estate,  the  general  object  being  the  sale  for 
an  agreed  sum,  the  time  of  payment  is  regarded  as  formal, 
and  that  stipulation  as  meaning,  that  the  purchase  shall  be 
completed  within  a  reasonable  time,  regard  being  had  to  all 
the  circumstances.  Time  is  not,  however,  in  such  cases  to 
be  altogether  disregarded,  but  to  entitle  him  to  relief  where 
time  is  not  essential,  the  party  asking  it  must  show,  that 
circumstances  of  a  reasonable  nature  have  prevented  a  strict 
compliance,  or  that  it  has  been  occasioned  by  the  fault  of  the 
other  party,  or  that  a  strict  compliance  has  been  waived."  ^ 

7.  So,  in  the  case  of  Fordyce  v.  Ford,'^  the  Master  of  the 
Rolls  said :  "  I  hope  it  will  not  be  supposed,  that  a  man  is 
to  enter  into  a  contract,  and  think  that  he  is  to  have  his  own 
time  to  make  out  his  title."  So,  it  is  said,  lapse  of  time, 
change  of  circumstances,  and  indifference  on  the  part  of  the 
vendee  of  land,  are  circumstances  to  induce  a  Chancellor  to 
refuse  a  decree  of  specific  performance.^  So  it  was  held, 
that  reversionary  leases  at  an  under-value,  obtained  by  an 
agent  from  his  principal,  the  relation  of  creditor  and  debtor 
also  subsisting,  after  an  acquiescence  of  twenty-seven  years, 
should  not  be  set  aside  ;  the  fiduciary  character  having  dur- 
ing that  period  ceased  to  exist,  and  the  transactions  being 
recognized  on  oath  by  the  principal,  as  fair.  So  a  sale  of 
the  reversion,  upon  a  calculation  of  the  rents  reserved  on 
such  leases,  cannot  therefore  be  impeached ;  being  in  other 
respects  fair,  and  acquiesced  in  for  almost  twenty  years.^  So 
specific  performance  was  refused  on  the  laches  and  trifling 
conduct  of  the  plaintiff;  the  contract  being  for  a  sale  to  the 
plaintiff,  under  a  bankruptcy,  of  a  reversionary  interest  for 
life,  which  in  the  interval  fell  into  possession.  The  defend- 
ants having  also  been  in  some  degree  remiss,  the  bill  was 
dismissed  without  costs,  upon  delivering  up  the  agreement.^ 

1  Rogers  v.  Saunders,  16  Maine,  92,  *  Medlicott  v.  O'Donnell,   1   Ball  & 

98.  Bea.  156. 

^  4  Bro.  498.  5  Spurrier  r.  Hancock,  4  Ves.  667. 
'^  Patterson  v.  Martz,  8  Watts,  374. 


en.  XL.J  LIMITATION. LAPSE    OF    TIME.  211 

So  a  bill  to  set  aside  a  purchase  by  a  trustee  for  himself  and 
his  children,  after  a  lapse  of  eighteen  years,  was  dismissed, 
upon  the  length  of  time  only.^  So  it  was  held,  that  a  decree, 
setting  aside  a  sale,  should  not  be  carried  into  execution,  on 
account  of  the  length  of  time  that  had  elapsed,  and  the 
change  of  circumstances  by  the  rise  in  land,  and  proportion- 
ate depreciation  of  money.  Upon  these  grounds,  a  bill  in 
1799,  to  have  the  benefit  of  a  decree  in  1740,  setting  aside  a 
sale  in  1721,  and  directing  accounts,  the  suit  having  abated 
in  1771  by  the  death  of  the  defendant,  and  in  1774  by  the 
death  of  the  plaintiff;  was  dismissed.^ 

8.  But,  as  has  been  already  seen,  (Chap.  11,)  time  is  not 
in  all  cases  held  an  essential  part  of  the  contract,  nor  mere 
lapse  of  time,  in  all  cases,  an  objection  to  specific  perform- 
ance. Thus,  where  an  agreement  for  the  sale  of  land  was 
suffered  to  remain  unexecuted  for  fourteen  years,  the  vendee 
having  continued  in  possession,  the  Court,  under  the  circum- 
stances of  the  case,  decreed  a  specific  performance  of  the 
contract.  Spencer,  J.,  says :  "  Generally  speaking,  the  obli- 
gation of  an  agreement  binds  the  parties  from  the  moment 
it  is  entered  into ;  and  place  and  time  are  circumstances 
affecting  only  the  performance  of  the  engagement ;  and  do 
not  import,  in  a  Court  of  Equity,  conditions  by  which  the 
parties  are  to  be  considered  as  contracting  on  the  ground  of 
a  strict  compliance,  but  are  mere  circumstances  admitting  of 
compensation.  The  appellant  and  Wisner  bound  themselves 
to  give  a  conveyance  on  or  before  the  1st  of  December,  at 
which  time  the  respondent  was  to  secure  the  purchase-money. 
These  acts  were  to  be  concurrent.  The  conveyance  must 
necessarily  have  preceded  the  security.  The  lacjies  in  not 
perfecting  the  contract  is  certainly  as  much,  if  not  more, 
attributable  to  the  appellant  than  to  the  respondent.  The 
lapse  of  time,  in  a  case  like  the  present,  where  no  material 
inconvenience  has  been   suffered  by  the  appellant,  can  be 

1  Gregory  v.  Gregory,  Coop.  204.  '^  Egremont  v.  Haniilton,  1  Ball  & 

Bea.  576. 


212  LAW    OF    VENDOUS   AND   PURCUASERS.  [cil.  XL. 

urged  only  on  the  ground  that  the  agreement  has  lam  dor- 
mant, and  that  this  is  evidence  of  the  abandonment  of  it 
by  the  parties.  Had  the  respondent  entered  as  a  tenant 
originally,  and  then  made  the  agreement,  and  continued  to 
possess,  the  possession  might  have  been  viewed  as  a  tenancy 
and  it  might  have  been  insisted  that  the  possession  was  not 
an  affirmance  of  the  agreement.  But  as  the  case  is,  the 
continuance  of  the  possession,  by  the  tacit  consent  of  the 
appellant,  until  he  instituted  the  ejectment  suit,  was  a  con- 
stant and  continued  affirmance  on  the  part  of  the  appellant 
that  the  holding  was  under  the  agreement.  The  counsel 
have  insisted,  as  a  notorious  fact,  that  the  lands  have  appre- 
ciated. On  this  point  we  have  no  evidence ;  but  if  it  be 
admitted,  are  we  to  suppose  that  the  appreciation  of  the 
land  is  greater  than  the  interest  of  the  money,  in  case  no 
payment  has  been  made  ?  I  cannot  say  so  ;  and,  therefore, 
in  the  absence  of  proof  to  the  contrary,  I  recur  to  the  obser- 
vation, that  the  appellant  will  suffer  no  material  incon- 
venience from  the  lapse  of  time."  ^ 

9.  In  1796,  in  Connecticut,  E.  agreed  to  sell  C.  certain 
lots  of  land  in  New  York,  for  which  he  duly  executed  and 
acknowledged  a  deed  of  conveyance.  C.  paid  part  of  the 
consideration,  and  gave  notes  for  the  residue  ;  but,  not  hav- 
ing security  for  them  at  hand,  the  deed  was  left  in  the  hands 
of  H.  as  an  escrow,  until  security  should  be  furnished.  E. 
died  in  1800,  the  notes  not  having  been  paid  or  secured.  C, 
being  indebted  to  the  complainant,  made  to  him  a  deed  of 
these  lots  ;  informing  him  then  or  afterwards,  that  he  had  no 
title,  and  that  the  deed  had  been  left  with  H.  as  security. 
After  tliis  information,  the  complainant  made  indirect  over- 
tures to  get  the  deed  from  B.,  and  finally  succeeded.  E.  or 
his  representatives  caused  the  true  state  of  the  case  to  be 
made  known  to  the  complainant,  and  the  amount  justly  due 
on  the  notes  to  be  demanded  of  him,  which  he  refused  to 
pay,  relying  on  his  title.     The  complainant  took  possesa^pn, 

1  Waters  v.  Travis,  9  Johns.  450,  466. 


CH.  XL.]  LIMITATION. LAPSE    OF    TIME.  213 

and  sold  the  lands  with  warranty.  In  1820,  the  heirs  of  E. 
commenced  ejectments  for  the  lands,  which  the  complainant 
defended.  On  trial,  H.  proved  the  delivery  of  the  deed,  as 
he  had  before  ejcplained  the  fact  to  the  complainant ;  and, 
the  Judge  being  of  opinion  that  the  deed  was  an  escrow, 
verdicts  were  found  for  the  lessors  of  the  plaintiff,  the  de- 
fendants in  this  suit,  upon  which  the  complainant  filed  this 
bill.  Held,  this  was  in  substance  the  ordinary  contract  for  a 
sale  of  lands,  when  the  title  remains  in  the  vendor  as  secu- 
rity, and  really,  though  not  in  form,  a  mortgage ;  that  time 
was  not  of  the  essence  of  the  contract,  but  compensation 
might  be  made,  being  the  amount  of  interest ;  that,  though 
the  conduct  of  the  complainant  was  immoral  and  reprehen- 
sible, and  though  the  delay  of  both  parties  had  been  great, 
yet  those  circumstances  did  not  deprive  the  complainant  of 
rights  previously  acquired ;  and  that  the  complainant  was 
entitled  to  relief,  upon  payment  of  the  principal  due  on  the 
notes,  with  interest,  costs,  and  expenses  both  at  law  and  in 
equity ;  including  not  only  legal  costs,  but  all  reasonable 
expenses  of  every  kind,  which  the  litigation  had  imposed  on 
the  defendants.^ 

10.  In  an  action  of  ejectment,  it  appeared  that  one  G., 
under  whom  the  defendant  claimed,  was  let  into  possession 
twenty-two  years  before  action  brought,  by  virtue  of  a  con- 
tract with  P.,  for  the  purchase  of  an  allotment  accruing  to 
P.,  under  an  inclosure  act,  which  provided  that  a  purchaser 
let  into  possession  of  an  allotment  should  have  the  same 
rights  as  the  vendor.  G.  paid  interest  on  a  portion  of  the 
purchase-money  for  some  years,  but  never  completed  the 
purchase.  Held,  that  even  after  a  lapse  of  twenty  years  his 
possession  was  not  adverse  to  P.'s  title ;  also,  that  it  did  not 
lie  in  the  mouth  of  G.,  or  any  claiming  #iider  him,  to  raise 
an  objection  to  P.'s  title,  that  the  Commissioners  of  Inclosure 
had  made  no  formal  award.  Tindal,  C.  J.,  says  :  "  It  has  not 
been  contended  that,  under  such  circumstances,  Payne  him- 

1  Leggett  V.  Edwards,  Hopk.  530. 


214  LAW    OF    VENDORS   AND   PURCHASERS.  [cil.  XL. 

self  might  not  have  ejected  Gegg  within  twenty  years;  and 
I  want  to  see  how  his  possession  could  be  deemed  adverse, 
unless  it  could  be  shown  he  refused  to  quit  after  notice,  or 
refused  to  pay  interest."  With  respect  to  the  allotrnent,  he 
proceeds  to  remark :  "  The  authority  given  to  the  commis- 
sioner was  to  put  Gegg  in  possession  ;  according  to  the  lan- 
guage of  that  authority,  the  allotment  must  have  been  made 
before.  Now,  under  the  twenty-third  section  of  the  act,  a 
party  who  has  agreed  to  purchase  shall,  if  let  into  possession, 
have  the  same  rights  as  the  vendor ;  and  it  is  said  that,  as 
no  award  has  been  made  by  which  the  property  was  given  to 
Payne,  he  can  now  have  no  title  to  recover  in  ejectment.  To 
which  the  first  answer  is  this,  that,  if  this  argument  be  well 
founded,  it  was  as  strong  at  the  end  of  a  fortnight  as  at  the 
end  of  twenty  years ;  and  yet  no  one  could  contend  that  the 
vendor  might  not,  at  the  time,  have  turned  Gegg  out  of 
possession.  Again,  if  it  be  established  that  Gegg  was  let 
in  under  the  authority  of  Payne,  it  does  not  lie  in  Gegg's 
month  to  ;-ay  that  Payne  had  no  title.  He  must  stand  or 
fall  by  the  title  of  the  party  under  whom  he  obtained  pos- 
session ;  and  the  twenty-third  section  of  the  act  was  inserted 
with  a  different  view;  not  to  raise  questions  between  the 
vendor  and  vendee,  but  that  the  vendee,  as  against  others, 
might  stand  clothed  with  the  same  right  as  upon  an  allot- 
ment made  to  himself."  Bosanquet,  J.,  says  :  "  An  agree- 
ment was  made  for  the  purchase  of  the  property,  and  the 
vendee  continued  to  pay  interest  for  several  years  after  hav- 
ing been  let  into  possession  by  the  vendor.  Being  so  let 
into  possession,  he  is  not  a  trespasser  till  he  has  refused  to 
quit  after  demand  made  upon  him."  "  Suppose,  that  instead 
of  a  sale  in  fee, — and  we  have  no  evidence  what  interest  was 
sold  here, — the  agaiement  was  for  a  short  demise,  the  party 
claiming  under  such  an  agreement  would  be  a  person  inter- 
ested under  the  act,  and  entitled  to  be  let  into  possession ; 
and  yet  is  it  to  be  contended  that  he  has  all  the  rights  of  an 
owner  in  fee,  when  he  is  let  in  only  for  a  term  ?     Here  the 


CH.  XL.]  LIMITATION. — LAPSE    OF   TIME.  215 

interest  of  the  party  occupying  was  only  a  permissive  in- 
terest, inferior  to  that  of  a  lessee."  ^ 

11.  So,  where  a  contract  for  the  sale  of  land  is  proved, 
and  an  uniform  possession  of  part  under  it,  length  of  time  is 
no  bar  to  a  specific  performance.^  So,  where  the  assignee  of 
a  lease  for  ten  years,  with  thg  privilege  of  then  taking  the 
property  at  a  stipulated  price,  makes  considerable  improve- 
ments thereon,  indicating  an  intention  to  purchase  ;  the  lessor 
dies,  and  the  heirs  are,  some,  infants,  others  non-residents,  . 
and  the  administrator  refuses  to  receive  the  purchase-money ; 
and  no  suit  is  brought  for  twenty-one  days  after  the  expira- 
tion of  the  lease  ;  it  violates  no  principle  of  equity  or  justice, 
to  say  there  is  no  forfeiture  of  the  right  to  purchase  and 
hold  the  premises.^  So,  after  bill,  answer,  and  replication, 
no  farther  steps  were  taken  in  the  cause  for  upwards  of 
twenty  years.  Held,  not  of  itself  a  reason  for  refusing  spe- 
cific performance,  there  being  acquiescence  on  both  sides. 
But  held  to  be  a  good  reason  for  not  giving  costs.^ 

12.  What  length  of  time  in  neglecting  to  perform  a  con- 
tract is  unreasonable,  and  would  authorize  its  rescision  at 
the  will  of  the  party  complaining  of  such  neglect,  is  a  matter 
of  law  to  be  determined  by  the  Court.^ 

1  Doe  V.  Edgar,  2  Bing.  N.  C.  498,  ^  Page  v.  Hughes,  2  B.  Mon.  441. 
502,  503,  504.  *  Cane  v.  Allen,  2  Dow,  289. 

2  Somerville  v.  Trueman,  4  Harr.  &  ^  Ragan  v.  Gaither,  11  Gill  &  Johns. 
McHen.  43.  472. 


21t)  LAW  OF  VENDORS  AND  PURCHASERS.      [CH.  XLT. 


chapt|:r  xli. 


SALES    BY   ORDER   OF   COURT. 


1.  Having  now  completed,  in  regular  order  of  subjects,  a 
view  of  the  rights  and  remedies  growing  out  of  the  contract 
of  sale  and  purchase  of  real  property,  a  few  remainmg  and 
somewhat  miscellaneous  topics,  connected  with  the  same 
general  subject,  will  complete  the  plan  of  the  present  work. 
Among  the  most  important  of  these,  is  the  subject  of  sales 
by  order  of  Court. 

2.  Sales  of  real  estate  may  be  made  by  order  of  a  Court 
of  Chancery,  as  well  as  by  voluntary  contract  between  the 
vendor  and  vendee.  In  many  respects,  of  course,  different 
consideranons  are  applicable,  and  different  rules  established, 
as  bearing  upon  the  validity  and  effect  of  these  two  kinds  of 
sales  ;  making  it  necessary  that  the  subject  of  judicial  sales 
should  be  distinctly  presented.  In  this  country,  however, 
the  transaction  in  question  is  of  much  less  frequent  occur- 
rence than  in  England,  and  therefore  demands  a  proportion- 
ally brief  notice  in  the  present  work. 

3.  It  has  been  sometimes  held,  that  to  all  sales  under  the 
orders  and  decrees  of  the  Court  of  Chancery,  the  rule  caveat 
emptor  is  to  be  applied.^  But,  on  the  other  hand,  this  rule 
has  been  held  not  to  apply  to  sales  by  the  Master  in  Chan- 
cery ;  for,  he  being  the  agent  of  the  parties,  for  whose  benefit 
the  sale  was  made,  they  are  as  much  bound  by  his  repre- 
sentations as  they  would  have  been  by  their  own.  Thus, 
where  a  tract  of  land  has  been  sold  by  the  Master  in  Equity, 
and  represented  upon  a  map  as  containing  more  acres  than 

1  Anderson  v.  Foulke,  2  Harr.  &  Gill,  346. 


CH.  XLI.]  SALES    BY    ORDER    OF   COURT.  217 

it  was  discovered  upon  a  resurvey  to  have,  an  abatement 
will  be  allowed  for  the  deficiency  in  the  quantity,  according 
to  the  nature  and  extent  of  the  defect.^ 

4.  A  contract  of  sale,  made  between  the  Court  as  the 
vendor,  through  the  agency  of  a  trustee,  and  the  purchaser, 
is  never  regarded  as  consummated,  until  it  has  received  the 
sanction  and  ratification  of  the  Court.^  So  the  purchaser 
under  a  decree  is  considered  as  owner,  only  from  the  time 
he  pays  in  his  purchase-money,  not  from  the  confirmation  of 
the  report,  by  which  he  is  declared  the  best  purchaser,  he 
having  taken  objections  to  the  title.^ 

5.  A  party  interested  in  the  proceeds  of  property  decreed 
to  be  sold,  although  his  right  in  the  property  is  merged  in 
the  decree,  retains  such  an  interest  as  will  enable  him  to 
apply  to  the  Court,  to  preserve  the  estate  from  injury  and 
waste.* 

6.  Where  a  vendee  had  purchased  land  of  a  person,  who 
held  title  under  a  void  d^ree  in  equity,  no  decretal  sale 
having  been  made  ;  it  was  held,  that  the  vendee  was  pre- 
sumed to  have  known  his  title,  and  that  his  title  failed  by  a 
reversal  of  the  decree.^ 

7.  We  have  already  (Chap.  6,)  considered  the  subject  of 
sales  at  auction,  and  tlie  circumstances  which  avoid  such 
sales ;  {a)  more  especially  the  act  of  puffing  or  by-bidding,  by 

1  Tunuo  >\  Flood,  1  M'Cord,  121.  '^   Warner  v.  Cohen,  6  Gill,  97. 

-  Warner  v.  Cohen,  6  Gill,  97.  &  Madeira  v.  Hopkins,   12  B.  Men. 

^  Mackrell  v.  Hunt,  2  Madd.  34,  n.  595. 


(a)  AVith  regard  to  the  proceedings  prior  to  the  sale,  which  may  affect  its 
validity,  it  is  held  that  an  advertisement  of  sale  by  the  Master  need  not  be 
signed  with  his  own  proper  signature,  but  may  be  printed  or  signed  by 
another.     Coxe  v.  Halsted,  1  Green,  Ch.  301. 

A  reasonable  notice  of  the  sale  is  sufficient ;  and  it  may  be  ordered,  in 
the  discretion  of  the  Court,  for  cash  or  credit.  Darrington  v.  Borland,  3 
Port.  12. 

A  sale  was  advertised,  to  take  place  between  the  hours  of  12  and  5  o'clock 
in  the  afternoon.  Held,  although  not  so  precise  as  convenience  required,  the 
VOL.  II.  19 


218  LAW    OF    VENDORS    AND    PURCHASERS.  [CH,  XLL 

which  the  price  is  unduly  ejihanced,  and  which  the  law  treats 
as  a  fraud  upon  the  fair  purchaser.  Sales  at  auction  by 
order  of  Court  have  been  subjected  to  similar  restriction. 
Thus  it  is  held  to  be  the  policy  of  the  Court  of  Chancery  to 
encourage  a  fair  competition  at  a  Master's  sale  ;  and  to 
effect  this  object,  it  will  not  allow  any  deception  whatever 
to  be  practised  upon  bidders.^  But,  at  a  sale  by  order  of 
Court,  a  reserved  bidding  was  allowed,  to  be  made  one  of 
the  conditions,  the  Master  to  fix  the  amount,  and  to  use  his 
discretion  in  communicating  it  to  the  parties  or  their  so- 
lictors.2 

8.  One  of  several  defendants  having  purchased  an. estate 
sold, under  the  decree,  without  having  obtained  leave  to  bid; 
another  defendant  moved,  that  the  estate  might  be  again  put 
up  at  the  price  bid,  and,  if  it  should  bring  more,  that  the 
sale  might  be  set  aside,  and  the  purchaser  pay  the  expenses 
of  the  resale,  and  the  costs  of  the  motion.  The  Court  re- 
fused the  application,  but  without  costs.^ 

9.  The  parties  interested  in  the  property  have  a  right  to 
expect,  that  it  will  be  put  up  and  sold  in  the  usual  manner, 
and  in  a  way  to  produce  a  fair  competition  among  the  per- 
sons attending  to  bid.  And,  where  the  property  has  been 
sacrificed,  by  the  neglect  or  mistake  of  the  Master  in  this 
behalf,  or  by  his  having  improperly  put  up  for  sale  several 
lots  together,  which  should  have  been  sold  separately ;  the 
parties  injured  are  entitled  to  a  resale,  or  to  such  other  relief 
as  can  be  given,  without  doing  injustice  to  a  bond  fide  pur- 
chaser.^    Where  the  property  consists  of  separate  and  dis- 

1  Veeder  v.  Fonda,  3  Paige,  94.  *  American,  &c    v.   Oakly,  9  Paige, 

2  Jervoise  v.  Clarke,  1  Jac.  &  W.  389.         259. 
»  Elworthy  v.  Billing,  10  Sim.  98. 


sale  should  not  be  set  aside  on  this  ground.     Coxe  v.  Halsted,  1  Green,  Ch. 
311. 

A  sale  was  advertised  to  be  made  on  the  premises,  and  actually  took  place 
within  eighty  yards,  and  in  view,  of  the  dwelling-house,  but  fifteen  or  twenty 
yards  from  the  boundary  line.  Held,  the  sale  should  not  be  set  aside  for 
this  cause.     Ferguson  v.  Franklin,  6  Munf.  305. 


CH.  XLI.]  SALES    BY    ORDER    OF    COURT.  219 

tinct  parcels,  which  can  be  enjoyed  separately  without  di- 
minishing their  value,  it  is  the  duty  of  the  officer  to  sell  in 
parcels,  except  in  very  special  cases.^  (a) 

10.  In  New  York,  all  sales  of  mortgaged  premises,  under 
a  decree  of  ^|e  Court,  must  be  made  by  a  Master,  or  under 
his  immediarc  direction.  A  sale  by  a  person  deputed  for 
the  purpose  by  a  Master,  in  his  absence,  is  irregular,  and  will 
be  set  aside.2 

11.  Sale  by  assignees  under  a  bankruptcy,  by  auction,  to 
one  of  the  creditors,  previously  consulted  as  to  the  mode  of 
the  sale,  and  contrary  to  an  order  that  a  receiver  should  be 
appointed  to  sell.  Another  sale  was  directed,  the  estate  to  be 
put  up  at  the  aggregate  amount  of  the  purchase-money  and 
the  sum  laid  out  in  substantial  improvements  and  repairs  ; 
which  were  to  be  allowed  in  case  of  a  sale  at  an  advance  ,* 
but,  if  no  further  bidding,  the  purchaser  to  be  held  to  his 
purchase.^ 

12.  By  an  order  for  the  resale  of  mortgaged  premises,  the 
Master  was  directed  to  put  them  up  at  a  particular  sum,  and 
resell,  if  that  amount  or  more  was  bid.  The  premises  were 
struck  off  for  the  sum  specified,  and  thereupon  the  Master, 
acting  under  direction  of  the  complainant's  solicitor,  and 
without  any  previous  intimation  to  that  effect,  insisted  upon 
the  immediate  payment  of  the  bid  in  specie,  although  the 
purchaser  offered  to  pay  in  good  current  bank  bills,  or  drafts 
on  specie-paying  banks,  or  to  pay  specie  as  soon  as  it  could 
be  obtained  from  the  banks.  The  Master  immediately  put 
up  th«  property  again,  upon  the  terms  that  specie  should  be 

1  American,  &c.  v.  Oakly,  9  Paige,  ^  Hughes  e.r  parte,  Lyon  ex  parte,  6 
259.  "  Ves.  622. 

-  Heyer  v.  Deaves,  2  Johns.  Ch.  154. 

(a)  The  last  clause  of  the  138th  rule  was  only  intended  to  provide  for 
special  cases ;  where  it  is  evident  that  several  parcels,  from  their  peculiar 
location  in  reference  to  each  other,  will  be  more  valuable  if  owned  by  one 
person,  or  where,  in  consequence  of  some  prior  incumbrance  upon  all  the 
parcels,  purchasers  will  not  be  likely  to  bid  upon  a  portion  only.  Ameri- 
can, &c.  V.  Oakly,  9  Paige,  259. 


220  LAW    OF    VENDORS    AND    PURCHASERS.  [ciI.   XLI. 

paid  down,  and,  no  person  purchasing  on  these  terms,  he 
reported  that  the  terms  upon  which  the  resale  was  directed 
had  not  been  complied  with.  Held,  the  conduct  of  the  Master 
was  improper  and  unjustifiable,  and  the  purchaser  entitled  to 
a  deed  upon  payment  of  the  amount  of  hi^wd ;  and  the 
report  of  the  Master  was  set  aside,  and  he  \^is  directed  to 
execute  to  the  purchaser  a  deed  upon  such  resale.' 

13.  A  motion  to  open  biddings  for  several  lots,  purchased 
by  diflerent  purchasers,  on  an  advance  of  a  certain  sum  for 
each  lot,  is  irregular.^ 

14.  An  announcement  by  the  Master,  after  the  property 
has  been  struck  olT,  at  a  sale  made  by  him,  that  if  the  pur- 
chaser does  not  comply  with  the  terms  of  the  sale,  the  prop- 
erty will  be  resold  at  his  expense,  does  not  discharge  the 
purchaser  from  his  bid.^ 

15.  Biddings  will  not  be  opened  because  the  price  is  too 
high  or  too  low,  if  the  sale  has  been  regularly  conducted  and 
fairly  made.*  But,  where  several  lots  have  been  purchased 
by  the  same  person,  and  the  biddings  are  ordered  to  be 
opened  as  to  those  first  purchased,  the  purchaser  will  be 
allowed  to  open  them  as  to  the  remainder.^  And,  if  there 
should  be  made  to  appear,  either  before  or  after  a  sale  has 
been  ratified,  any  injurious  mistake,  misrepresentation  or 
fraud,  the  biddings  will  be  opened,  the  sale  rejected,  or  rati- 
fication rescinded,  and  the  property  resold.^  It  is  held  that, 
the  Master  who  sells  property  should  insert  nothing  in  his 
description  in  the  notice  of  sale,  which  may  unduly  enhance 
the  value  of  the  property  or  mislead  the  purchaser.  Thus, 
where  land  sold  under  a  decree  was  described  in  the  Master's 
notice  as  containing  about  twenty  acres,  when  in  fact  it 
contained  but  thirteen,  and  one  of  the  complainants,  who 
was  present  at  the  sale,  knew  of  the  deficiency,  but  con- 
cealed it  from  the  Master  and  the  bidders,  and  encouraged 

1  Barinjr  v.  Moore,  5  Paige,  48.  *  Gordons.  Sims,  2  M'C.  Ch.  159. 

2  Goodall  V.  Pickford,  6  Sim.  379.  ^  pj-jce  v.  Price,  1  Sim.  &  Stu.  386. 

'^  National,  &c.  v.  Loomis,  11  Paige,  ^  Anderson  v.  Foulke,  2  Harr.  &  G. 
431.  346. 


CH.  XLI.]  SALES    BY   ORDER   OF   COURT.  221 

them  to  bid ;  the  sale  was  set  aside  on  application  of  the 
purchaser.!  go  where  a  memorandum,  not  authorized  by 
the  Master,  was  read  at  a  Master's  sale,  describing  the 
dimensions  of  the  dwelling-houses  sold,  and  which  turned 
out  to  be  incorrect  by  several  feet,  the  sale  was  vacated.^ 
So,  it  is  said,  in  Lowndes's  case,  the  sale  was  set  aside  at 
the  instance  of  the  purchaser  on  account  of  a  serious  mis- 
take in  the  representation  of  the  lands.  In  Roper's  case  be- 
cause the  land  was  knocked  off  to  the  purchaser  prematurely 
by  mistake  of  the  auctioneer,  who  did  not  hear  a  higher  bid.^ 

16.  A  purchaser,  defendant  in  a  suit  for  specific  perform- 
ance, did  not  in  his  answer  mention  any  warranty  or  repre- 
sentation made  by  the  vendor,  and  insisted  merely  that  a 
good  title  was  not  shown.  A  reference  of  title  was  ordered ; 
the  Master  reported  in  favor  of  the  title,  and  a  decree  for 
specific  performance  was  pronounced.  After  the  order  of 
reference,  the  defendant  discovered  that  the  timber  on  the 
estate,  which  constituted  its  principal  value,  was  much  less 
in  quantity  than  it  had  been  represented  to  be  in  a  state- 
ment, the  accuracy  of  which  was  alleged  to  have  been 
warranted  at  the  sale ;  but  the  fact  of  such  warranty  was 
strongly  controverted.  Under  these  circumstances,  leave  was 
given  to  file  a  supplemental  bill,  in  the  nature  of  a  bill  of 
review,  in  order  that  the  defendant  might  have  the  same 
benefit  of  the  alleged  warranty,  as  if  he  had  originally  in- 
sisted on  it  in  his  answer.  And,  after  such  leave,  he  has  a 
right  to  file  the  bill,  without  having  previously  paid  the  pur- 
chase money  which  the  decree  commands  him  to  pay,  if  the 
time  at  which  the  adverse  party,  in  the  due  execution  of  the 
decree,  can  compel  payment,  has  not  yet  arrived.* 

17.  A  purchaser  under  a  decree  agreed  to  sell  to  A.,  and 
died,  his  heir  being  abroad.  Ordered,  that  A.  should  be  sub- 
stituted for  him  as  purchaser,  be  at  liberty  to  pay  the  pur- 
chase money  into  Court,  and  be  let  into  possession.^ 

1  Veeder  v.  Fonda,  3  Paige,  94.  *  Partridges.  Usborne,  5  Russ.  195. 

2  Laight  V.  Pell,  1  Edw.  577.  ^  Pearce  v.  Pearce,  7  Sim.  138. 

3  Gordon  v.  Sims,  2  M'Cord,  Ch.  159. 

19* 


222  LAW    OF    VENDORS    AND    PURCHASERS.  [cil.  XLI. 

18.  Under  a  decretal  order  of  the  Court,  certain  lands  were 
sold  by  the  Master,  and  the  purchaser,  in  conformity  with  a 
further  decretal  order,  gave  security  to  the  Master,  by  a  cov- 
enant with  a  surety  to  pay  the  purchase-money  within  fifteen 
days ;  but  the  money  was  not  thus  paid.  Held,  that  a  rem- 
edy at  common  law  would  be  impracticable  and  inadequate; 
that  no  proper  damages  could  be  given  upon  such  covenant; 
that  whoever  makes  himself  party  to  the  proceedings  of  a 
Court  of  Equity,  and  undertakes  to  do  a  particular  act  under 
its  decretal  orders,  may  be  compelled  to  perform  what  he 
has  undertaken ;  and  that  equity  may  by  attachment  compel 
a  purchaser  at  a  sale  by  the  Master  or  his  surety  to  pay  the 
purchase-money.  So,  although  the  surety  was  not  aware 
that  he  subjected  himself  to  the  summary  process  of  the 
Court ;  nor  that  the  plaintiff'  had  a  right,  on  the  default,  to 
resell  the  lands.  Nor  can  the  surety  take  any  exception  to 
the  title,  if  the  purchaser,  his  principal,  has  failed  to  do  so.^ 

19.  A  purchaser  of  estates  sold  under  a  decree  was  dis- 
charged on  motion  from  his  purchase,  upon  proof  of  error 
in  the  decree,  though  the  parties  were  proceeding  to  rectify 
it.  In  this  case.  Lord  Eldon  remarked,  that  he  would  not 
extend  the  rule  which  the  Court  had  adopted,  of  compelling 
the  purchaser  to  take  the  estate  where  a  title  is  not  made  till 
after  the  contract,  to  any  case  to  which  it  had  not  already 
been  applied.^ 

20.  The  Court  of  Chancery  has  power,  even  after  enrol- 
ment, to  open  a  regular  decree  obtained  by  default,  and  to 
discharge  the  enrolment,  for  the  purpose  of  a  defence  upon 
the  merits,  where  the  party  has  been  deprived  of  such  de- 
fence either  by  mistake  or  accident,  or  by  the  negligence  of 
his  solicitor.  So,  after  a  sale  by  a  Master  under  the  decree, 
where  the  complainant  himself  became  the  purchaser,  and 
has  not  reconveyed  to  a  bond  fide  purchaser  or  mortgagee.^ 

21.  An  appeal  lies  from  the  decretal  order  of  the  Chan- 

1  Wood  V.  Mann,  3  Sumn.  318.  ^  Millspangh    v.  McBride,  7   Paige, 

^  Lechmere  v.  Brasier,  2  Jac.  &  W.     509. 

287. 


CH.  XL!.]  SALES   BY   ORDER   OF   COURT.  223 

cellor,  refusing  to  open  the  sale  of  mortgaged  premises  and 
grant  a  resale,  on  application  of  a  defendant,  although  he 
has  permitted  the  bill  to  be  taken  against  him  pro  confesso. 

22.  A  resale  will  be  ordered,  where  mortgaged  premises 
have  been  sold  greatly  below  their  value,  and  bought  in  by 
the  mortgagee,  if  the  mortgagor,  or  those  standing  in  his 
place,  have  been  misled  by  the  mortgagee,  or  even  by  a  third 
person,  in  reference  to  the  foreclosure,  and  in  consequence 
thereof  do  not  attend  the  sale.' 

23.  Land  was  sold  under  a  decree,  and  the  sale,  after 
opposition  by  the  purchaser,  was  ratified ;  but  the  trustee 
received  neither  notes  nor  bonds  for  the  purchase-money. 
The  period  for  payment  having  expired,  the  Chancellor 
ordered  the  purchaser  to  pay  to  the  trustee,  or  bring  into 
Court,  the  amount  of  the  purchase-money  and  interest  be- 
fore a  given  day,  or  show  good  cause  to  the  contrary.  The 
purchaser  having  failed  to  comply,  the  Chancellor  then  or- 
dered an  attachment  against  him,  to  enforce  obedience  to 
his  first  order.  On  appeal,  held,  that  the  proceeding  was 
valid.^ 

24.  Where  sales  of  estates  had  fraudulently  taken  place, 
under  decrees  of  the  Court  of  Exchequer  in  Ireland,  obtained 
by  collusion  between  the  tenant  for  life,  the  mortgagee,  the 
person  in  whose  favor  a  charge  had  been  created,  and  the 
purchaser ;  and  where  the  interests  of  the  tenant  in  remain- 
der had  not  been  protected  in  such  suits ;  the  Court  of  Chan- 
cery in  Ireland,  on  his  coming  into  possession,  granted  him 
relief  on  a  bill  filed  to  redeem  ;  and  that  decree  was  affirmed 
by  the  Lords.^ 

25.  A  purchase  under  a  decree,  though  affected  by  irregu- 
larity and  notice,  will  not  be  set  aside  in  favor  of  a  subse- 
quent remainder-man ;  a  prior  tenant  in  tail  having  been  a 
party.* 

26.  The  Court  will  not  discharge  a  purchaser  and  substi- 

^  Tripp  V.  Cook,  26  Wend.  143.  ^  Bandou  v.  Becher,  3  Clark  &  Fin. 

-  Anderson  v.  Foulke,  2  Harr.  &  G.     479. 
346.  *  Lloyd  v.  Johnes,  9  Ves.  37. 


224  LAW    OF    VENDORS   AND   PURCHASERS.  [CH.  XLI. 

tute  another,  even  upon  paying  in  the  money,  without  an 
affidavit  that  there  is  no  under-bargain  ;  for  the  new  pur- 
chaser may  give  the  other  a  sum  of  money  to  stand  in  his 
place  and  so  deceive  tlie  Court.' 

27.  A  trustee  having  sold  lands  by  order  of  the  Court  of 
Chancery,  and  reported  his  proceedings  to  that  tribunal, 
where,  after  objections  by  the  purchaser,  they  were  ratified, 
and  the  ratification  sanctioned  by  the  Appellate  Court ;  it  is 
no  longer  competent  for  such  purchaser  to  contest  that  sale, 
nor  to  object  that  he  was  not  reported  in  the  usual  way,  as 
the  purchaser.^ 

28.  An  original  bill  in  chancery  cannot  be  filed  by  a  party 
to  a  foreclosure  suit,  to  set  aside  a  Master's  sale  under  a 
decree,  where  relief  could  have  been  obtained  by  a  summary 
application  to  the  Court,  in  the  foreclosure  suit.^ 

29.  A  vendor  obtained  a  decree  for  specific  performance, 
with  a  declaration  that,  if  the  purchase-money  was  not  paid 
by  a  given  day,  the  estate  should  be  sold,  the  proceeds  paid 
to  the  vendor,  and  the  purchaser  be  made  personally  liable 
for  any  deficiency.  The  Master  fixed  the  day  of  payment, 
but  the  purchaser  died  before  that  day,  insolvent;  and  a 
creditor's  suit  was  instituted  for  the  administration  of  his 
assets.  Upon  a  bill  of  revivor  and  supplement,  filed  by  the 
vendor,  praying  to  have  the  benefit  of  the  creditor's  suit,  as 
well  as  his  own  ;  held,  he  was  not  entitled  to  prove  against 
the  general  assets  of  the  testator,  and  at  the  same  time  to 
reserve  his  lien  on  the  estate  contracted  to  be  sold,  in  case  of 
a  deficiency  in  the  general  assets.* 

30.  A  purchaser  under  a  decree  is  not  affected  by  irregu- 
larities and  defects  in  the  decree,  by  which  the  application 
of  the  money  may  not  have  been  properly  secured.^ 

1  Rigby  V.  Macnamara,  6  Ves.  515.  ^  Brown  v.  Frost,  10  Pai^e,  243. 

2  Anderson  v.  Foulke,  2  Harr.  &  G.        *  Rome  v.  Young,  3  Y.  &  Coll.  199. 
346.  5  Curtis  v.  Price,  12  Ves.  89. 


en.  XLII.]  REMEDIES    IN    CASE    OF    FKAUD,    ETC.  225 


CHAPTER    XLII. 

REMEDIES  IN  CASE  OF  FRAUD,  ETC. 

1.  We  have  already,  in  various  connections,  (see  Chaps. 
13,  17,  19,)  referred  to  the  respective  claims  of  vendor  and 
vendee,  growing  out  of  some  wrongful  act  or  omission  of 
one  party  in  reference  to  the  other ;  more  especially /rawc?  or 
concealment,  whereby  the  price  of  the  property  sold  is  affected, 
to  the  injury  of  the  party  upon  whom  such  fraud  or  conceal- 
ment is  practised.  As  constituting  the  foundation  of  actions 
in  law  or  equity,  the  same  subject  may  be  further  briefly  con- 
sidered in  the  present  connection. 

2.  It  has  been  held  that,  where  a  purchaser  takes  advan- 
tage of  the  distress  or  ignorance  of  the  vendor,  or  of  any 
particular  authority  over  him,  a  Court  of  Equity  may  set 
aside  the  purchase  as  fraudulent,  even  after  the  purchaser's 
death.i  So,  that  an  action  will  lie  against  the  seller  of  any 
interest  in  an  estate,  for  affirming  the  rents  to  be  more  than 
they  are,  while  he  is  in  treaty  about  the  sale,  if  the  pur- 
chaser relies  and  acts  upon  the  affirmation.  So,  though  the 
seller  was  not  then  in  possession  ;  and  though  the  affirma- 
tion preceded  the  sale.^  (a) 

1  Gould  V.  Okeden,  4  Bro.  P   C.  198.  ^  Lysney  v.  Selby,  2  Ld.  Eaym.  1118. 

(a)  The  following  statement  of  the  general  rules  of  law  ujion  this  sub- 
ject, not  perhaps  exclusively  applicable  to  real  property,  is  found  in  a  late 
English  case  in  equity  : — 

Cases  have  frequently  occurred,  in  which,  upon  entering  into  contracts, 
misrepresentations  made  by  one  party,  have  not  been  in  any  degree  relied 
on  by  the  other  party.  If  the  party  to  whom  the  representations  were 
made,  himself  resorted  to  the  proper  means  of  verification  before  he  entered 


226  LAW    OP   VENDORS   AND    PURCHASERS.  [cil.  XLII. 

3.  A  contract  was  made,  under  the  persuasion  that  the 
Legislature  of  Pennsylvania  and  the  Congress  of  the  United 
States  would  pass  laws,  the  one  for  the  termination  of  the 
Erie  Extension  of  the  Pennsylvania  Canal  at  the  mouth  of 
Elk  Creek,  and  the  other  making  appropriations  for  a  harbor 
at  the  same  point ;  and  the  main  and  only  inducement  to 
this  contract  was,  the  mutual  expectation  of  the  parties,  that 


into  the  contract,  it  may  appear  that  he  relied  upon  the  result  of  his  own 
investigation  and  inquiry,  and  not  upon  the  representations  made  by  the 
other  party  ;  or  if  the  means  of  investigation  and  verification  be  at  hand, 
and  the  attention  of  the  party  receiving  the  representations  be  drawn  to 
them,  the  circumstances  of  the  case  may  be  such,  as  to  make  it  incumbent 
on  a  court  of  justice  to  impute  to  him  a  knowledge  of  the  result,  which, 
upon  due  inquiry,  he  ought  to  have  obtained,  and  thus  the  notion  of  reliance 
on  the  representations  made  to  him  may  be  excluded.  Again,  when  the 
Court  is  endeavoring  to  ascertain  what  reliance  was  placed  on  representa- 
tions, it  must  consider  them  with  reference  to  the  subject-matter,  and  the 
relative  knowledge  of  the  parties.  If  the  subject  is  capable  of  being  accu- 
rately known,  and  one  party  is,  or  is  supposed  to  be,  possessed  of  accurate 
knowledge,  and  the  other  is  entirely  ignorant,  and  a  contract  is  entered 
into,  after  representations  made  by  the  party  who  knows,  or  is  supposed  to 
know,  without  any  means  of  verification  being  resorted  to  by  the  other,  it 
may  well  enough  be  presumed,  that  the  ignorant  man  relied  on  the  state- 
ments made  by  him  who  was  supposed  to  be  better  informed  ;  but  if  the 
subject  is  in  its  nature  uncertain,  if  all  that  is  known  about  it  is  matter  of 
inference  from  something  else,  and  if  the  parties  making  it,  and  receiving 
representations  on  the  subject,  have  equal  knowledge  and  equal  skill,  it  is 
not  easy  to  presume,  that  representations  made  by  one  would  have  much  or 
any  influence  upon  the  other.     Clapham  v.  Shillito,  7  Beav.  146. 

So  in  a  late  American  case  it  is  held  that,  where  parties  to  a  contract 
have  presupposed  some  facts  or  rights  to  exist,  or  that  will  thereafter  exist, 
as  the  basis  of  their  proceedings,  which  in  truth  do  not  exist,  or  ai'e  pre- 
vented from  happening  by  unforeseen  causes  ending  in  mutual  error,  under 
circumstances  material  to  their  character  and  consequences ;  such  contract, 
on  general  principles,  is  inoperative  and  invalid.  So,  that,  where  a  contract 
is  made  under  a  mistake,  or  in  ignorance  of  a  material  fact  which  is  of  the 
very  essence  of  the  contract,  it  is  voidable  and  relievable  in  equity.  So,  it 
seems,  not  only  where  there  has  been  studied  suppression  or  concealment, 
but  in  many  cases  of  innocent  ignorance  and  mistake  on  both  sides.  Miles 
V.  Stevens,  3  Barr,  21. 


CH.   XLII.]  REMEDIES    IN    CASE    OF   FRAUD,    ETC.  227 

the  land  immediately  adjacent  to  the  mouth  of  the  creek 
would  become  the  site  of  a  great  city,  as  the  direct  conse- 
quences of  the  public  improvements  there  to  be  made.  Held, 
that  where  such  inducements  utterly  failed,  without  fault 
imputable  to  any  person,  it  would  be  contrary  to  equity  to 
compel  payment  of  the  purchase-money.^ 

4.  Articles  of  agreement  for  the  sale  of  lands  contained 
the  following  stipulation :  "  The  said  A.  hereby  agrees  to 
sell  unto  the  said  B.  and  C,  &c.,  one  undivided  half  part  of 
two  hundred  acres  of  land,  situate  on  Elk  Creek,  in  the 
county  of  Erie,  and  including  the  mouths  of  said  creek  ; 
said  two  hundred  acres  to  be  cut  off  the  lands  of  the  said  A. 
by  lines  hereafter  to  be  designated  by  the  said  A.,  B.,  and  C, 
or  a  majority  of  them,  so  as  to  embrace  within  said  two 
hundred  acres  the  lands  at  the  harbor  of  said  Elk  Creek  best 
suited  for  the  site  of  a  city  intended  to  be  located  on  the 
same."  Held,  these  words  were  not  only  a  description  of 
the  premises  sold,  but  also  a  representation  that  there  was  a 
harbor  there,  which,  being  the  assertion  of  a  material  fact, 
would  affect  the  contract,  and  attaint  it  with  fraud,  if  it 
were  proved  to  be  untrue.  That  it  would  be  error  for  the 
Court  to  submit  the  construction  of  the  agreement  to  the 
jury,  and  instruct  them  that  they  might  infer  from  it  alone 
misrepresentations  by  the  vendor  ;  but  it  would  not  be  error, 
where  other  evidence  had  been  given,  to  submit  the  agree- 
ment, with  such  evidence,  to  the  jury,  and  to  instruct  them 
"  to  weigh  all  the  facts  in  the  case,  and  to  say  whether  they 
tend  to  prove  that  the  vendor  misrepresented  the  condition 
of  the  mouth  of  Elk  Creek,  relative  to  a  harbor,  and,  if  they 
believed  the  vendor  had  practised  a  fraud  upon  the  vendees, 
in  relation  to  the  existence  of  a  harbor  at  that  place,  such 
fraud  would  entirely  vitiate  the  contract."  ^  (a) 

1  Miles  V.  Stevens,  3  Barr,  21.  ^  jijjfj 

(a)  Evidence,  that  there  was  no  harbor  at  the  mouth  of  Elk  Creek,  and 
not  the  slightest  probability  that  one  would  be  constructed,  was  held  to  be 
relevant  and  admissible  ;  as  it  went  to  contradict  the  repi-esentation  of  the 
vendor,  that  there  was  a  harbor  there.     Miles  v.  Stevens,  3  Barr,  21. 


228  LAW    OF    VENDORS   AND    PURCHASERS.  [CH.  XLII. 

5.  The  vendor  of  a  public  house,  pending  the  treaty, 
made  certain  deceitful  representations  respecting  the  amount 
of  the  business  done  in  the  house,  and  the  rent  received 
for  a  part  of  the  premises,  whereby  the  plaintiff  was  in- 
duced to  give  a  large  sum  for  them.  Held,  the  latter  might 
maintain  an  action  on  the  case  for  the  deceitful  representa- 
tions, although  they  were  not  noticed  in  the  conveyance,  or 
in  a  written  memorandum  of  the  bargain,  drawn  up  after 
they  were  made.' 

6.  Defendant,  being  owner  of  a  house,  employed  an  agent 
to  sell  it.  The  agent  described  it  as  free  from  rates  and 
taxes,  and  did  not  know  it  to  be  otherwise ;  but  it  was  in 
fact  liable  to  certain  rates  and  taxes,  as  the  defendant  knew. 
On  the  faith  of  the  agent's  description  the  plaintiff  bought 
the  house.  Held,  that  the  plaintiff  might  maintain  case  for 
deceit  against  the  defendant,  though  it  did  not  assert  that 
the  defendant  had  instructed  the  agent  to  make  any  repre- 
sentation, as  to  rates  or  taxes.'^ 

7.  The  declaration  stated,  that  one  B.  had  agreed  with  the 
plaintiff  for  the  purchase  of  the  lease  and  good-will  of  a 
public  house ;  that,  before  and  at  the  time  of  making  the 
agreement,  the  defendant  falsely,  fraudulently,  and  deceit- 
fully represented  to  B.,  that  the  trade  of  the  house  was  of  a 
certain  extent;  that  B.  had  not  been  able  to  complete  the 
purchase,  and  it  was  afterwards  agreed  between  the  plaintiff, 
B.,  and  the  defendant,  that  the  plaintiff  should  become  the 
purchaser  in  the  room  of  B.,  and  at  and  before  the  making  of 
the  last-mentioned  agreement,  B.  communicated  to  the  plain- 
tiff the  representation  the  defendant  had  made  to  him  ;  of 
all  which  the  defendant  then  had  notice;  that  the  plaintiff, 
confiding  in  the  representation  so  made  by  the  defendant, 
agreed  to  become  the  purchaser,  and  paid  the  purchase- 
money;  that  the  representation  was  false,  as  the  defendant 
well  knew ;  and  that  the  plaintiff  sustained  damage.  The 
defendant  pleaded,  that  he  did  not  authorize  B.  to  commu- 
nicate to  the  plaintiff  the  representation  he,  the  defendant, 

'  Dobell  V.  Stevens,  3  Barn.  &  Cress.  32-3.        2  Fuller  v.  Wilson,  3  Ad.  &  El.  58. 


CH.  XLII.]  REMEDIES   IN   CASE   OF   FRAUD,    ETC.  229 

had  made  to  B.  Held  that  the  declaration  disclosed  a  good 
cause  of  action,  and  that  the  plea  was  no  answer  to  it. 
Tindal,  C.  J.,  says,  in  substance,  as  to  the  declaration  :  "  The 
plaintiff  took  upon  himself  the  fulfilment  of  Bowmer's  con- 
tract in  all  its  parts.  Bowmer  had  contracted  and  agreed 
with  the  defendant  for  the  purchase  of  the  lease  and  good- 
will of  the  premises  for  the  sum  of  .£1,175,  and,  being  un- 
able to  complete  the  purchase,  it  was  agreed  that  the  plaintiff 
should  become  the  purchaser  in  the  room  and  stead  of  Boiv- 
mer.  I  can  only  understand  this  as  a  transferring  to  the 
plaintiff'  of  the  contract  of  Bowmer,  with  its  price  and  all 
other  incidents.  The  defendant,  after  he  has  had  notice  that 
the  misrepresentation  he  made  to  Bowmer  has  been  commu- 
nicated by  him  to  the  plaintiff,  permits  the  latter  to  go  on 
with  the  contract,  takes  his  money,  and  executes  a  convey- 
ance of  the  premises  to  him.  The  defendant's  motive  would 
be  the  same  whether  one  party  or  the  other  became  eventu- 
ally the  purchaser  ;  the  means  employed  would  be  the  same, 
the  end  the  same — the  obtaining  for  the  house  a  larger  sum 
of  money  than  he  was  conscious  it  was  worth."  ^  Vaughan, 
J.,  says :  "  The  defendant  has  been  guilty  of  a  fraud,  from 
which  has  resulted  a  damage  to  the  plaintiff,  and  these  are 
sufficiently  averred,  and  I  can  hardly  conceive  a  grosser 
fraud  than  that  disclosed  upon  this  declaration."  Coltman, 
J.,  says  :  "  The  only  doubt  that  has  suggested  itself  to  me 
has  been  whether  the  mere  general  averment  of  notice,  with- 
out a  specific  averment  that  the  defendant  knew  or  supposed 
the  plaintiff  to  have  been  acting  upon  the  faith  of  the  repre- 
sentation made  by  him,  would  suffice.  But,  upon  considera- 
tion, I  think  it  must  be  assumed  that  he  had  such  knowledge."  ^ 
8.  A  bill  charging  falsehood  and  fraud  in  a  sale,  as  to  the 
exaggerated  quantity  of  timber  on  land,  may  contain  enough 
to  justify  setting  the  sale  aside  for  a  gross  mistake  in  the 
quantity,  without  setting  up  the  latter  as  a  specific  and  sep- 

1  Ace.  LatiKridge  v.  Leroy,  2  Mees.         2  pjimore  v.  Hootl,  6  Scott,  827,  838, 
&  W.  532;  Hill  v.  Gray,   1  Stark.  434.     839,  840,  841. 

VOL.    II.  20 


230  LAW   OP   VENDORS    AND   PURCHASERS.  [CH.  XLII. 

arate  cause ;  but  it  is  better  to  have  such  cause  stated  inde- 
pendently, in  order  to  give  clearer  notice  to  the  respondents 
of  what  is  to  be  contested.^ 

9.  One  person  owned  an  undivided  share  of  land,  the 
whole  title  of  which  had  been  vested  in  two  of  the  others  in 
trust  for  the  rest,  and  these  two  had  agreed  to  sell  to  him  the 
whole  at  a  given  price,  but  he  had  failed  to  make  or  tender 
payment  at  the  time  agreed.  The  others  having  agreed  to 
allow  him  further  time,  he  sells  at  an  advance,  receiving  the 
excess  for  himself,  and  the  two  then  convey  to  him,  he  hav- 
ing conveyed  to  the  purchasers,  and  receive  the  considera- 
tion agreed  from  the  purchasers,  through  him.  Upon  a  bill 
to  set  aside  the  sale,  held,  under  these  circumstances,  the 
whole  title  was  not  in  him,  but  before  delivering  the  deeds 
he  was  their  agent ;  and,  if  they  took  the  proceeds  and  bene- 
fits of  the  sale,  they  must  aid  him  to  refund  the  considera- 
tion which  they  received.  More  especially  where  some  of 
the  owners  in  common,  beside  the  persons  negotiating  the 
sale,  united  in  the  false  representations  and  attempts  to  mis- 
lead, by  making  similar  exaggerated  statements  as  to  the 
timber,  and  in  forming  another  company  in  which  they 
were  part  proprietors,  to  purchase  of  themselves  at  a  still 
higher  rate  per  acre  than  he  was  to  give.  This  person  was 
to  be  the  agent  to  sell  for  that  company,  and  at  the  same 
time  was  represented  as  the  vendor  to  them  after  buy- 
ing of  the  trustees,  though  in  fact  he  never  had  a  convey- 
ance from  the  trustees  nor  made  one  to  the  other  company. 
It  was  farther  held,  that,  where  such  vendor  keeps  a  part  of 
the  notes  given  for  the  consideration,  and  assigns  them  to  a 
creditor  as  collateral  security  for  a  previous  debt,  or  for  a 
debt  partly  new,  but  not  in  payment  or  satisfaction  of  it ; 
the  note  is  open  to  any  defence,  which  was  good  against  it 
in  his  hands  ;  more  especially,  where  the  creditor  had  notice 
of  the  consideration  of  the  note,  and  probably  had  informa- 
tion of  the  exaggerations  and  misrepresentations  practised.^ 

'  Smith  V.  Babcock,  2  Woodb.  &  M.  216.  ^  Ibid. 


CH.  XLII.]  REMEDIES   IN   CASE   OF   FRAUD,    ETC.  231 

10.  As  has  been  already  stated,  (Vol.  1,  pp.  433,  436,) 
there  may  be  a  degree  of  unfairness  in  obtaining  articles 
for  the  purchase  of  an  estate,  for  which  equity  will  not  set 
them  aside,  but  will  refuse  its  aid  to  carry  them  into  execu- 
tion ;  and,  if  the  party  who  obtained  such  articles  has  been 
in  possession  and  made  lasting  improvements,  he  shall  be 
allowed  for  them  on  consenting  to  deliver  up  the  articles 
and  account  for  the  profits  ;  otherwise,  if  he  goes  to  law  and 
fails  there.'  But  a  contract  for  the  sale  of  iron  mines  was 
rescinded,  on  the  ground  of  fraudulent  misrepresentations  of 
the  value  of  the  estate,  and  of  the  prices  of  ironstone  and 
other  materials,  and  of  the  quantities  of  materials  required 
for  the  manufacture  of  iron,  notwithstanding  possession  had 
been  taken,  the  mines  worked,  and  other  acts  of  ownership 
had  been  exercised,  and  notwithstanding  some  acts  in  con- 
firmation of  the  contract.^ 

11.  It  has  been  held,^  that  an  action  on  the  case  does 
not  lie  against  a  vendor  for  selling  the  lands  of  another 
man  as  his  own.  But,  in  connection  with  the  decision  of 
this  point.  Holt,  C.  J.,  says  :  "  Suppose  a  man  has  houses  in 
lease  in  the  possession  of  his  tenants,  which  is  this  case,  and 
upon  sale  of  them  affirm  that  they  are  let  at  so  much  per 
annum  rent.  The  case  of  Eakins  v.  Tresham,^  is,  that  an 
action  will  lie  for  such  a  false  affirmation.  If  it  were  not 
for  that  resolution,  I  should  think  it  a  hard  action  to  main- 
tain. The  difference  is  there  taken  between  the  annual 
value  and  the  value  in  gross  ;  if  the  vendee  does  not  depend 
upon  the  affirmation  of  the  vendor,  but  sends  to  inquire  into 
the  value  of  the  houses,  &c.,  what  they  let  for,  as  it  appeared 
the  plaintiff  did  in  this  case,  there  it  is  not  reasonable  he 
should  recover."  Gould,  J.,  said :  "  The  value  of  the  rents 
was  a  thing  hard  to  be  known,  and  secret,  and  known  to 
none  but  the  landlord  and  the  tenants,  and  they  might  be  in 

'  Savage  v.  Taylor,  Cas.  T.  Talb.  234.         ^  Lysney  v.  Selbv,  2  Ld.  Raym.  1119, 
■^  Small  V.  Attwood,  You.407;  6Cla.     1120,1121. 
&rin.  232.  *  1  Keb.  510,  518,  522;  1  Lev.  102; 

1  Sid.  146. 


232  LAW   OF   VENDORS   AND   PURCHASERS.  [CH.  XLII. 

confederacy  together."  So  an  action  of  deceit  will  not  lie 
against  a  person,  for  falsely  affirming  that  he  was  incumbent 
of  such  a  vicarage,  and  had  a  right  to  the  tithes,  and  after- 
wards selling  them,  although  the  vendee  lost  the  tithes  thus 
purchased  by  their  being  taken  by  the  lawful  incumbent; 
for  the  seller  could  not  have  them  without  title,  and  the 
buyer  is. at  his  peril  to  see  it.^ 

12.  The  proposition  is  sometimes  found  stated  in  the 
books,  that  slander  of  title  to  real  property  is  a  good  ground 
of  action,  (a)  The  principle,  however,  is  subjected  to  strict 
limitations.  Thus  an  action  does  not  lie  against  a  person, 
for  giving  notice  of  his  claim  upon  an  estate,  either  by  him- 
self or  his  attorney,  at  a  public  auction,  or  to  any  person 
about  to  purchase,  although  the  sale  be  thereby  prevented, 
nor  without  proof  of  malice  and  damage  to  the  plaintiff. 
Lord  Mansfield,  commenting  upon  the  facts  of  the  case, 
says :  "  The  words  of  the  message  sent  by  Lee  are  true ; 
and  they  proceed  from  a  person  called  upon  to  give  notice  ; 
either  to  protect  his  own  property,  or  (what  is  his  duty  as  a 
moral  act,)  to  save  another  from  being  cheated.  Lee  had 
notice  of  Loveday's  bankruptcy,  from  Bolland.  Lee  had 
an  interest  in  the  fund ;  and  he  was  entitled  to  take  out  a 
commission  against  Loveday.  He  reads  an  advertisement 
'  for  the  sale  of  Loveday's  estate.'     He  was  thereby  called 

1  Roswell  V,  Vaughan,  3  Cro.  196. 


(a)  The  plaintiff"  having  advertised  for  sale  a  bond  executed  to  him  by 
the  defendant  as  a  surety,  the  payment  of  which  had  been  resisted  in  a  long 
course  of  litigation,  in  which  the  validity  of  the  bond  was  disputed;  the 
defendant,  pending  a  suit  in  error,  published  among  the  persons  assembled 
at  an  auction  sale  of  the  bond  a  statement  of  all  the  circumstances  under 
which  it  was  made,  and,  referring  to  the  plaintiff",  concluded  thus :  "  His 
object  is,  either  to  extract  money  from  the  pocket  of  an  unwary  purchaser, 
or  what  is  more  likely,  by  this  threat  of  publication,  m  extort  money  from 
me."  Held,  this  declaration  was  not  protected  as  a  privileged  communica- 
tion, or  as  a  comment  upon  titles  by  a  party  interested,  but  was  actionable 
without  proof  of  express  malice.     Robertson  v.  McDougall,  4  Bing.  670. 


CH.  xlil]         remedies  in  case  of  fraud,  etc.  238 

upon^  in  order  to  preserve  his  own  interest  and  that  of  the 
rest  of  the  creditors,  as  an  honest  and  a  prudent  man,  to  give 
this  notice.  For,  if  the  estate  had  been  purchased  without 
notice  of  the  bankruptcy,  such  purchaser  would  have  been 
protected  by  a  satisfied  term  prior  to  the  act  of  bankruptcy 
still  standing  out.  When  an  auction  was  advertised  and 
was  proceeding  for  the  sale  of  this  estate,  with  intent  to 
cheat  purchasers  by  a  false  title,  shall  not  he,  as  an  honest 
man,  give  this  notice,  and  prevent  iniquity  ?  But  here,  this 
man  (Lee)  had  a  property  of  his  own  to  secure  ;  he  was  a 
creditor  of  Loveday,  and  intended  to  sue  out  a  commission. 
Another  ground  to  maintain  such  an  action  as  this  is,  '  that 
it  must  be  such  a  slander  as  goes  directly  to  defeat  the 
plaintiff's  title.'  But  in  this  case,  the  assertion  does  not  go 
to  defeat  the  plaintiff's  title."  ^ 

18.  So  the  attorney  of  a  party,  claiming  title  to  premises 
put  up  for  sale,  is  not  liable  in  an  action  for  slander  of  title, 
if  he  bond  fide,  though  without  authority,  make  such  objec- 
tions to  the  seller's  title,  as  his  principal  would  have  been 
authorized  to  make.^ 

14.  A  lease,  containing  a  proviso  for  reentry,  if  the  rent 
were  in  arrear  twenty-eight  days,  was  exposed  to  sale  by 
the  assignee,  the  rent  being  then  in  arrear  for  that  period. 
At  the  sale,  the  lessor  announced  that  the  vendors  could  not 
make  a  title,  in  consequence  of  which  bidders,  who  came  to 
buy,  went  away  ;  and  he  afterwards  offered  .£100  for  the 
lease,  but  subsequently  recovered  the  premises  in  ejectment. 
Held,  he  was  not  liable  to  an  action  for  slander  of  title.'^ 

15.  Action  for  slander  of  title,  conveyed  in  a  letter  to  a 
person  about  to  purchase  an  estate  from  the  plaintiff,  imput- 
ing insanity  to  one  A.,  from  whom  the  plaintiff  purchased, 
and  stating  that  the  title  would  therefore  be  disputed ;  per 
quod  the  proposed  purchaser  refused  to  complete  the  pur- 
chase.    It  appeared,  that  the  defendant  had    married  the 

1  Hargrave  o.  LeBreton,  4  Burr.  2422.         '^  Watson  v.  Reynolds,  Moo.  &  M.  l, 

3  Smith  V.  Spooiier,  .3  Tatuit.  246. 

20* 


234  LAW   OF   VENDORS   AND    PURCHASERS.  [CII.  XLII. 

sister  of  A.,  who  was  heir  to  her  brother  in  the  event  of  his 
dying  without  issue.  Held,  the  defendant  was  not  to  be 
considered  as  a  mere  stranger ;  and  the  question  for  the  jury 
was,  not  whether  they  were  satisfied,  as  men  of  good  sense 
and  good  understanding,  that  A.  was  insane,  or  that  the 
defendant  believed  him  so,  upon  such  grounds  as  would 
have  persuaded  a  man  of  sound  sense  and  knowledge  of 
business  ;  but  whether  he  made  the  communication  bond 
fide  believing  it  to  be  true,  as  he  judged  according  to  his 
own  understanding,  and  under  such  impressions  as  his  situ- 
ation and  character  were  likely  to  beget.^ 

16.  The  illegality  of  a  contract  relating  to  the  sale  or  pur- 
chase of  lands  is  undoubtedly  a  good  defence  against  an  ac- 
tion to  enforce  it.  But,  in  the  following  recent  English  case, 
the  principle  was  held  inapplicable  to  the  facts  of  the  case. 

17.  To  a  declaration  in  covenant  the  defendant  pleaded, 
that,  before  making  the  covenant,  it  was  unlawfully  agreed 
between  the  plaintiff  and  defendant,  that  the  plaintiff  should 
sell  and  convey  to  the  defendant  land,  at  a  certain  price,  for 
the  purpose  (as  the  plaintiff"  then  well  knew)  that  the  said 
land  should  be  exposed  to  sale  by  lottery,  contrary  to  the 
12  Geo.  XL,  c.  28 ;  that  afterwards,  in  pursuance  of  the  said 
illegal  agreement,  the  said  land  was  sold  and  transferred  to 
the  defendant,  and,  a  part  of  the  purchase-money  being  un- 
paid, the  defendant,  to  secure  the  payment  thereof  to  the 
plaintiff,  entered  into  the  covenant  declared  upon.  Issue  hav- 
ing been  taken  on  this  plea  and  found  for  the  defendant,  it 
was  held,  after  verdict,  that  the  plea  disclosed  no  answer  to 
the  action,  as  it  did  not  show  that  the  covenant  was  entered 
into  for  the  purpose  of  carrying  out  the  prior  illegal  object, 
or  in  pursuance  of  the  illegal  contract.  Lord  Campbell,  C. 
J.,  says  :  "  The  plea  discloses  nothing  which  shows  that  the 
deed  or  covenant  is  illegal.  We  must  take  it  that  after  the 
transfer  of  the  premises  had  been  completed,  there  was  a 
new  agreement  come  to  between  the  parties,  under  which 

1  Pitt  V.  Donovan,  1  M.  &  S.  639. 


CII.  XLII.]  REMEDIES    IN    CASE    OF   FRAUD,    ETC.  235 

the  defendant  gave  this  security  for  part  of  the  purchase- 
money.  In  that  I  see  no  illegality ;  it  is  not  against  either 
of  the  statutes,  nor  is  it  for  the  purpose  of  carrying  on  a 
lottery.  For  aught  that  appears,  the  illegal  purpose  may 
have  been  abandoned,  and  the  defendant  being  in  possession 
of  the  premises  and  using  them  for  a  perfectly  lawful  pur- 
pose, may  have  thought  himself  bound  to  pay  the  price,  and 
therefore  entered  into  this  covenant.  There  is  no  infraction 
of  the  statutes  or  of  the  rules  of  morality  in  this.  Where 
a  security  is  given  for  the  price  of  that  which  is  absolutely 
illegal,  as  for  a  murder,  although  given  after  the  crime  has 
been  committed,  it  would  no  doubt  be  bad,  because  there 
would  be  no  consideration  of  any  kind  to  support  it.  But 
here  there  is  a  good  moral  consideration  that  the  vendor 
should  receive  the  recompense  stipulated  for." ' 

18.  We  have  akeady  considered  the  restrictions  and  disa- 
bilities which  the  law  imposes  upon  attorneys,  in  reference  to 
the  purchase  of  lands  from  or  for  the  benefit  of  their  clients 
and  employers.  It  may  be  added  in  this  connection,  that,  in 
a  recent  English  case,  a  bill  by  an  attorney  against  his  client 
for  specific  performance  of  a  contract  of  sale,  the  attorney 
having  bought  at  an  auction,  and  having  been  professionally 
employed  in  the  sale,  was  dismissed  with  costs.'^  So  it  has 
been  recently  held,  that  an  attorney  cannot  sustain  his  pur- 
chase from  a  client,  unless  he  can  prove  that  his  diligence  to 
do  the  best  for  the  vendor  has  been  as  great  as  if  he  was 
only  an  attorney  dealing  for  that  vendor  with  a  stranger.^ 
And  the  relation  of  attorney  and  client  was  in  this  case  held 
to  continue,  although  the  attorney  had  not  acted  as  such  for 
the  vendor  for  more  than  a  year  previous  to  the  purchase, 
(but  prepared  the  purchase  agreement,  and  charged  accord- 
ingly,) he  having  previously  been  employed  as  attorney  about 
an  attempted  sale  of  the  same  property.^     So  the  sale  from 

'  Fisher  y.  Bridges,  18  Eng.  L.  &Eq.  ^  Holman  v.  Loynes,  27  Eng.  L.  & 

358,  361.  Eq.  168. 

-  Cutts  V.  Salmon,  12  Eng.  L.  &  Eq.  *  Ibid. 
316. 


236  LAW    OF    VENDOllS   AND    PURCHASERS.  [ClI.  XLII. 

a  client  was  set  aside,  on  the  ground  that  the  consideration, 
an  annuity,  ought  to  have  been  considerably  greater,  by  rea- 
son of  the  intemperate  habits  of  the  vendor,  although  the 
vendor,  acting  under  the  advice  of  an  auctioneer,  named  the 
price  and  pressed  the  attorney  to  purchase.'  But,  where  the 
same  solicitor  was  employed  by  the  vendor  and  purchaser,  and 
the  purchaser  paid  his  purchase-money  to  the  solicitor,  and 
was  afterw^ards  deprived  of  the  benefit  of  his  pm'chase  by 
parties  having  a  prior  equitable  mortgage,  which  was  known 
to  the  solicitor  at  the  time  of  the  purchase  ;  it  was  held,  that 
the  Court  had  no  jurisdiction,  on  petition  of  the  purchaser, 
to  order  the  solicitor  to  pay,  out  of  the  purchase-money,  the 
amount  of  the  equitable  mortgage,  as  the  money  was  not 
paid  to  him  as  the  solicitor  of  the  petitioner,  but  of  the  ven- 
dor ;  and  that  it  had  no  jurisdiction,  on  petition,  to  order  the 
solicitor  to  make  compensation  to  the  purchaser  for  the  loss 
sustained  through  his  negligence.^ 

19.  Where  an  attorney  purchases  in  for  his  own  benefit  a 
title  adverse  to  that  of  his  client,  he  is  not  liable  to  an  action 
in  favor  of  a  subsequent  grantee  of  his  client.^ 

20.  With  regard  to  the  general  responsibility  of  an  attor- 
ney in  reference  to  the  title  of  land  bought  and  sold,  the 
following  remarks  are  made  by  Bayley,  J.,  in  the  case  of 
Ireson  v.  Pearman,'^  where  the  attorney  of  a  vendee  was 
employed  to  investigate  the  title,  and,  in  taking  the  opinion 
of  counsel  thereon,  omitted  to  state  in  the  case  certain  deeds 
materially  affecting  the  title,  and,  upon  the  faith  of  the 
opinion  given,  (which  would  have  been  different,  had  all  the 
deeds  been  stated,)  the  vendee  concluded  the  purchase,  but 
was  afterwards  damnified  by  finding  that  the  title  was  im- 
perfect. Held,  the  attorney  was  liable  to  him  in  an  action 
for  negligence.  "  The  defendant  laid  a  case  before  counsel, 
but  he  chose  in  that  case  to  assume  the  fact  that  Malin  was 

'  Holman  v.  Loynes,  27  Eng.  L.  &         ^  Cowan  v.  Barret,  18  Mis.  257. 
Eq.  168.  *  5  Dowl.  &  Rjl.  687.  699. 

-  Tylee  v.  Webb,  7  Eng.  L.  &  Eq. 
281. 


CH.  XLII.]  REMEDIES   IN    CASE    OF   FRAUD,    ETC.  237 

seized  in  fee,  instead  of  setting  out  the  deeds  themselves 
which  would  at  once  have  shown  that  Caldecott  had  an 
estate  for  life.  Now,  without  going  the  length  of  saying 
that  it  is  the  duty  of  an  attorney  to  know  the  legal  effect  of 
conveyances,  it  certainly  is  his  duty  either  to  draw  right 
conclusions  from  the  deeds  laid  before  him,  or  to  lay  the 
deeds  themselves  before  his  counsel;  and  if  he  withholds 
the  deeds,  and  draws  a  wrong  conclusion,  he  does  it  at  his 
peril.  There  is  one  other  circumstance  from  which  we  think 
negligence  .may  be  inferred.  The  defendant  received  the 
abstract  of  the  title  in  February,  1818.  That  abstract  con- 
tained no  notice  of  the  deeds  by  which  Caldecott  conveyed 
the  estate  to  Mrs.  WagstafF;  but  when  he  received  those 
deeds,  which  was  l^efore  any  conveyance  was  made  to  the 
plaintiff,  he  did  not  lay  them  before  Mr.  Preston,  and  inquire 
whether  they  made  amr  alteration  in  his  opinion  ;  which 
they  certainly  would  have  done,  because  if  Malin  had  really 
been  seized  in  fee,  Caldecott  could  not  have  had  any  thing  to 
convey."  So,  on  a  bill  to  make  an  attorney  responsible,  for 
recommending  bad  security,  the  Lord  Chancellor  said :  "  If 
any  thing  is  to  be  imputed  to  the  defendant  through  negli- 
gence, he  will  be  subject  to  damages  for  it  at  law  ;  if  through 
fraud,  this  Court  is  proper  to  relieve."  No  fraud  appearing, 
the  bill  was  dismissed.'  (a) 

1  Brooks  V.  Day,  2  Dick.  572. 


(a)  An  attorney  employed  to  purchase  and  prepare  the  assignment  of  an 
annuity,  before  the  decisions  holding  that  the  trusts  in  annuity  deeds  must 
be  particularly  set  forth  in  the  memorial,  is  not  liable  for  negligence  in  not 
having  pointed  out  to  his  employer  that  the  annuity  purchased  was  void, 
because  the  memorial  omitted  particularly  to  specify  the  trusts  of  the  annuity 
deeds.     Baikie  v.  Chandless,  3  Camp.  Ca.  17. 


238 


LAW   OF   VENDORS   AND    PURCHASERS.  [CH.  XLIII. 


CHAPTER    XLIII. 


MISCELLANEOUS   POINTS   OF   PRACTICE. 


1.  Payment  of  purchase-money  into 
Court,  and  the  disposal  tliereof. 
C.  Security  for  purchase-money. 
10.  Injunctions. 


14.  Ne  exeat  regno. 

20.  Production  of  deeds,  &c. 

23.  Arbitration  and  award. 


1.  Questions  sometimes  arise,  in  reference  to  the  exercise 
of  the  authority  of  the  Court  over  purohase-money  paid  to 
the  vendor,  or  the  disposition  of  purchase-money  paid  into 
Court.     (See  Vol.  1,  p.  451.)  ^ 

2.  The  Court  will  not  compel  a  vendor  to  pay  the  deposit- 
money  into  Court,  though  he  retains  possession  of  the  estate, 
if  the  delay  in  the  completion  of  the  contract  is  occasioned 
by  the  purchaser.  ^ 

3.  In  a  suit,  for  payment  of  creditors,  the  real  estates  of 
the  testator  were  ordered  to  be  sold.  The  party  reported 
purchaser  of  one  of  the  estates  entered  into  possession,  and 
accepted  the  title,  and  proper  conveyances  were  executed. 
On  application  by  the  creditors  to  have  the  purchase-money 
paid  out,  the  purchaser  stated,  that  the  tenants  had  been 
served  with  a  writ  of  right  by  a  person  who  was  claimant  of 
the  whole  estate  under  an  adverse  title.  Held,  the  Court 
could  do  no  more  than  give  possession,  and  a  conveyance 
under  a  title  satisfactory  to  the  purchaser  himself ;  and  after 
this  he  had  no  right  to  object  to  the  application  of  the  pur- 
chase money ;  and  the  Court  ordered  accordingly.^ 

4.  An  estate  sold  under  a  decree  was  described  as  of  a  cer- 
tain annual  value,  and,  by  the  conditions,  compensation  was 
to  be  made  for  any  error  in  the  particular.     The  purchaser 


Wynne  v.  Griffith,  1  Sim.  &  St.  147 


-  Thomas  v.  Powell,  2  Cox,  394. 


CH.  XLIII.]         MISCELLANEOUS   POINTS   OF   PRACTICE.  239 

paid  his  money  into  Court,  was  let  into  possession,  and  took 
a  conveyance.  After  he  got  into  possession,  he  discovered 
that  the  rent  was  overstated  in  the  particular.  Held,  he  was 
entitled  to  a  compensation  out  of  his  purchase-money.' 

5.  A  vendor,  resisting  an  application  by  the  purchaser  for 
payment  into  Court  of  the  deposit,  in  the  hands  of  the  ven- 
dor's agent,  was  charged  with  a  loss  by  the  agent's  failure.^ 

6.  Equity  may  also  act  upon  the  question  of  security  for 
the  purchase-money  of  land  sold. 

7.  Upon  a  motion  for  an  injunction  to  stay  proceedings  at 
laAv,  it  appeared  that  the  defendant  had  agreed  to  purchase 
an  estate  from  the  plaintiff  for  <£100^  and  for  an  annuity  for 
her  life  ;  but  it  was  not  specified  what  security  should  be 
given  for  the  annuity.  The  defendant  offered  his  bond  and 
judgment.  Held,  the  annuity  should  be  secured  by  charge 
upon  the  estate,  as  well  as  by  the  bond  ^nd  judgment.^ 

8.  An  agreement  to  purchase  land  for  an  annuity  for  the 
life  of  the  vendor,  to  be  a  charge  on  the  land,  and  to  be  paid 
quarterly,  entitles  the  vendor  not  only  to  the  charge,  but  to 
the  covenant  of  the  purchaser  for  payment  of  the  annuity.'* 

9.  A  vendor,  having  lost  his  title-deeds,  agreed  to  give  the 
vendee  a  real  security  against  such  loss.  On  a  bill  for 
specific  performance,  he  stated  he  had  not  real  property  suf- 
ficient for  such  security,  but  offered  ample  personal  security. 
Held,  he  was  bound  to  procure  a  sufficient  real  security.^ 

10.  The  equity  power  of  injunction  is  sometimes  exercised 
as  between  vendor  and  purchaser. 

11.  Where  the  defendant  is  in  Maryland,  but  the  land  in 
controversy  in  Virginia,  and  it  is  sought  to  vacate  a  decree 
of  a  Court  in  Virginia,  though  this  cannot  be  done,  yet  the 
defendant,  seeking  to  enforce  such  decree,  may  be  enjoined 
from  accepting  a  conveyance  of  lands  purchased  by  him 
under  it,  or,  if  he  has  inequitably  obtained  title,  may  be 
decreed  to  reconvey.*^ 

'  Cann  v.  Cann,  3  Sim.  447.  *  Bower  v.  Cooper,  2  Hare,  408. 

-  Fenton  v.  Browne,  14  Ves.  144.  ^  Walker  v.  Barnes,  3  Madd.  247. 

3  Remington  v.  Deverall,  2  Anstr.  550.  "  Buciianan  v.  Lorman,  3  Gill,  52. 


240  LAW    OF   VENDORS   AND   PURCHASERS.  [CH.  XLIII. 

12.  After  dismissal  of  a  bill  for  specific  execution  of  an 
agreement,  the  plaintiff  being  unable  to  make  a  good  title, 
an  injunction  to  restrain  him  from  proceeding  at  law  was 
granted  on  motion ;  the  defendant  undertaking  forthwith  to 
file  a  biU.i 

13.  A  vendor  covenanted  that  no  building  except  tombs 
should  be  erected  on  any  part  of  his  land,  opposite  to  the 
land  sold.  Subsequently,  he  sold  part  of  the  opposite  land, 
and  the  purchaser  built  on  it,  without  objection  by  the  former 
purchaser.  Afterwards,  the  vendor  sold  a  further  part  of 
the  opposite  land,  and  the  new  purchaser  commenced  build- 
ing. The  original  purchaser  filed  a  bill  for  an  injunction,  to 
resti'ain  the  defendant  from  building  on  any  part  of  the  land 
of  the  original  vendor,  or  the  opposite  land ;  but  it  was  dis- 
missed, the  Court  holding,  that  the  covenant  extended  only 
to  the  lands  of  the  original  vendor  exactly  opposite  to  the 
land  sold  to  the  plaintiff.^ 

14.  An  injunction  will  lie  against  a  purchaser,  on  behalf 
of  creditors,  to  restrain  payment  to  the  heir.^ 

15.  The  Chancery  process  of  ne  exeat  regno  is  sometimes 
applied  between  vendor  and  purchaser. 

16.  Bill  to  have  a  specific  performance  of  an  agreement, 
and  that  the  defendant  might  pay  X  1,900,  the  remainder  of 
the  purchase-money,  £100  having  been  paid.  The  defend- 
ant threatening  to  go  abroad,  a  writ  ne  exeat  regno  was 
granted,  to  be  marked  in  the  sum  of  £300.^ 

17.  The  Court  refused  to  discharge  a  writ  of  ne  exeat 
regno  issued  against  the  purchaser,  and  marked  for  the 
full  amount  of  the  purchase-money,  though  the  abatement, 
(which  it  clearly  appeared  would  be  less  than  the  interest) 
had  not  been  ascertained  by  the  Master,  and  no  steps  had 
been  taken  towards  the  execution  of  the  conveyances.  The 
sheriff,  having  taken  the  defendant  under  the  writ,  refused 

1  McNamara  v.  Arthuiy  2  Ball  &  B.        ^  Green  v.  Lowes,  3  Bro.  C.  C.  217. 
349.  ■•  Goodwill  v.  Clarke,  2  Dick.  497. 

2  Patching  v.  Dubbins,  23  Eng.  L.  & 
Eq.  609. 


CH.  XLin.]        MISCELLANEOUS   POINTS   OF   PRACTICE.  241 

to  release  him  until  the  whole  sum,  for  which  the  writ  was 
marked,  was  paid  into  his  hands,  and  the  Court  did  not 
disapprove  of  his  conduct.^ 

18.  But,  to  entitle  the  complainant  to  a  writ  of  ne  exeats 
upon  a  bill  for  specific  performance  of  a  contract,  against 
the  vendee,  he  must  show  a  debt  actually  due ;  and  must 
therefore  show  affirmatively  that  he  is  able  to  make  a  good 
title.2 

19.  In  a  suit  for  specific  performance  by  a  vendor,  a  writ 
of  ne  exeat  regno  ought  not  to  issue,  unless  the  Court  deems 
it  quite  clear  that  there  must  be  a  decree  for  specific  per- 
formance. Thus  it  was  refused,  though  the  purchaser  had 
taken  possession  and  received  the  rents  after  delivery  of  the 
abstracts.^ 

20.  Where  a  covenant  in  an  agreement  for  a  lease  was 
broken,  and  a  verdict  obtained  for  X500  as  damages  for  the 
breach,  but  the  plaintiif  in  the  action  died  before  the  judg- 
ment was  perfected,  so  that  the  damages  were  lost  at  law ; 
the  Court,  on  a  bill  by  his  representatives  for  specific  per- 
formance of  the  agreement,  refused  a  writ  of  ne  exeat  regno 
for  the  amount.* 

21.  The  production  of  title-deeds  and  other  papers  is 
sometimes  required  by  the  Court,  as  a  condition  of  enforc- 
ing specific  performance.     (See  Chap.  15.) 

22.  A  reversion  having  been  put  up  to  sale  by  auction, 
describing  the  estate  as  leased,  with  a  covenant  on  the  part 
of  the  tenant  to  repair ;  and  the  purchaser  objecting  to  the 
title,  because  no  counterpart  of  the  lease  was  in  possession 
of  the  vendors,  it  being  stated  to  be  in  the  hands  of  a  party 
under  a  partition  made  some  time  before ;  the  Court  thought 
that  such  counterpart  ought  to  be  deposited  for  the  benefit 
of  all  parties,  before  it  could  compel  the  purchaser  to  take.' 

23.  Specific  marriage  articles  limited  a  joint  estate  to  the 

'  Boehm  v.  Wood,  Turn.  &  K.  332.  •»  Jenkins  v.   Parkinson,  2   Myl.    & 

«  Brown  v.  HafF,  5  Paige,  235.  Kee.  5. 

5  Morris  v.  McNeil,  2  Russ.  604.  '"  Shore  v.  Collett,  Coop.  234. 

VOL.  II.  21 


242         LAW  OP  VENDORS  AND  PURCHASERS.    [CH.  XLIII. 

intended  husband  and  wife,  and  after  the  death  of  the  sur- 
vivor to  the  use  of  the  heirs  of  the  body  of  the  husband 
begotten  on  the  wife  ;  and  the  settlement  after  marriage 
pursued  the  words  of  the  articles.  The  husband  and  wife 
levy  a  fine  and  first  mortgage,  and  then  agree  to  sell.  The 
articles  not  being  produced,  the  Court  would  not  decree  them 
to  be  carried  into  execution  by  a  strict  settlement,  against 
the  purchaser,  who  had  no  notice  of  them.^ 

24.  We  have  already  had  occasion  (Chap.  25,  s.  34;  Chap. 
35,  s.  19,)  to  speak  of  the  effect  of  an  arbitration  and  award, 
in  reference  to  the  rights  and  obligations  of  vendor  and  pur- 
chaser. A  few  additional  points  remain  to  be  noticed  in  the 
present  connection. 

25.  A  bill  lies,  to  compel  specific  performance  of  an  award 
to  convey  an  estate,  where  the  party  has  received  the  consid- 
eration.^ 

26.  Stipulation,  that  the  title  to  lands  sold  should  be  made 
out  to  the  satisfaction  of  a  third  person.  A  dispute  as  to 
the  title  was  referred  to  an  arbitrator,  with  power  to  settle 
all  questions  arising  out  of  the  agreement,  who  awarded 
that  the  title  should  be  taken,  with  a  bond  of  indemnity  in 
case  of  eviction.  Held,  the  award  was  bad,  because  the 
arbitrator  had  exceeded  his  authority  in  ordering  a  bond, 
and  had  not  decided  upon  the  validity  of  the  title.^ 

27.  Under  a  contract  for  sale,  at  a  price  to  be  fixed  by  an 
award  within  a  limited  time  during  the  lives  of  the  parties, 
the  death  of  one  is  not  an  accident,  against  which  the  Court 
will  relieve.^ 

28.  If  the  terms  of  an  agreement  are  to  be  ascertained 
by  an  award,  being  so  ascertained,  it  shall  be  specifically 
performed  if  any  thing  is  to  be  done  in  specie  ;  such  as  a 
conveyance,  &c.  But  not  if  the  acts  done  towards  execut- 
ing it  by  an  award   are  not  valid  at  law,  as  to  the  time, 

1  Cordwell  v.  Mackrill,  Ambl.  515.  "  Ross  v.  Boards,  3  Nev.  &  Per.  382. 

^  Hall  V.  Hardy,  3  P.  Wms.  187.  ^  Blundell  v.  Brettargh.  17  Ves.  232. 


CH.  XLIII.]         MISCELLANEOUS   POINTS   OF  PRACTICE.  243 

manner,  or  other  circumstances ;  unless  there  has  been  ac- 
quiescence, notwithstanding  the  variation  of  circumstances, 
or  part-performance.^  (a) 

1  Blundell  v.  Brcttargh,  17  Vcs.  232. 


(a)  It  is  said,  there  is  no  case  at  law  or  in  equity,  that,  if  an  award  is  not 
made  at  the  time  and  in  the  manner  stipulated,  the  Court  have  substituted 
themselves  for  the  arbitrators,  and  made  the  award ;  even  where  the  sub- 
stantial thing  to  be  done  was  agreed  by  the  parties,  but  the  time  and  manner 
left  to  others  to  prescribe.  So  also,  that  there  is  no  instance  where,  the 
medium  of  arbitration  for  settling  the  terms  of  a  contract  having  failed,  this 
Court  has  assumed  jurisdiction  to  determine,  that  there  is  a  contract,  though 
not  at  law,  in  equity ;  which,  though  the  parties  never  agreed  to  it,  shall  he 
specifically  executed.    Blundell  v.  Brettargh,  17  Ves.  232. 


APPENDIX. 


21* 


APPENDIX. 


There  are  various  topics  treated  in  the  foregoing  pages,  upon 
which  much  discussion  and  difference  of  opinion  is  found  in  the 
reports,  only  the  general  or  prevailing  result  of  which  it  has  been 
found  practicable  to  state,  within  the  prescribed  limits  of  the  present 
work.  In  relation  to  these  controverted  points,  it  will  be  useful  to 
cite  at  greater  length  some  of  the  latest  leading  cases,  which  often 
contain  in  themselves  a  comprehensive  abstract  of  the  earlier  de- 
cisions upon  the  same  subjects. 


Vol.  I.  p.  1,  note.     Agreement  to  Devise  Heal  Estate. 

The  following  very  late  English  case  establishes  an  important  dis- 
tinction, as  to  the  terms  of  communication  which  are  necessary  and 
sufficient  to  create  this  somewhat  anomalous  and  unusual  liability. 

The  guardians  of  a  lady  refused  their  assent  to  a  proposed  mar- 
riage, except  on  condition  of  a  marriage  settlement.  The  proposed 
husband  thereupon  applied  to  an  uncle,  of  whom  he  had  expectations, 
who  replied  by  letter  that  he  had  made  his  will,  and  given  his  nephew 
a  large  estate.  The  guardians  not  being  satisfied,  they  renewed  the 
application,  to  Avhich  the  uncle  replied  by  letter,  Ihat  his  will  was 
made,  and  he  was  confident  he  should  never  alter  it  to  his  nephew's 
disadvantage,  but  that  he  would  not  put  any  part  of  his  property  out 
of  his  power.  This  answer  was  communicated  by  the  intended  hus- 
band to  the  guardians,  and  the  marriage  agreed  to.     The  uncle  after- 


248  APPENDIX. 

wards  altered  liis  will,  leaving  nothing  to  the  nephew,  and  after  his 
death  this  suit  was  brought  against  his  estate.  Held,  the  facts  did 
not  prove  a  contract  to  leave  the  estate  mentioned  in  the  letters  to 
the  nephew.  Lord  Chancellor  Cranworth  says  (in  substance)  :  "  The 
appellant  paid  his  addresses  to  his  cousin  ;  he  had  an  uncle,  an  old 
bachelor,  with  a  large  property ;  he  himself  had  but  little  money  ; 
the  guardians  of  ih6  young  lady  were  opposed  to  the  marriage  unless 
he  could  make  a  good  settlement  in  her  favor ;  and  under  these  cir- 
cumstances, having  received  kindnesses  from  his  uncle,  and  believing 
that  his  uncle  was  willing  to  befriend  him,  he  addresses  a  letter  to 
the  uncle,  who  says,  in  answer,  that  he  is  glad  to  see  that  his  nephew, 
the  appellant,  is  about  to  be  well  married,  and  that  he  has  left  his 
Tipperary  property *to  the  appellant.  That  was  a  very  vague  answer; 
and  the  trustees  and  guardians  wished  for  a  more  specific  declaration. 
We  have  not  the  letter  communicating  this  wish,  but  we  have  the 
answer, — '  I  shall  never  settle  any  part  of  my  property  out  of  my 
power  so  long  as  I  exist.'  Nothing  can  be  clearer  or  more  strongly 
expressed  than  this  resolution.  I  think  the  attempt  afterwards  to 
spell  out  of  this  letter  a  representation  which  is  to  be  construed  into 
an  engagement  or  a  contract,  is  altogether  unsatisfactory.  To  say 
that  in  this  same  letter  the  party  binds  himself  to  make  a  settlement 
of  his  property,  when  he  merely  says  that  the  Tipperary  estates  will 
come  into  his  nephew's  possession  after  his  death,  '  unless  some  un- 
foreseen occurrence  should  take  place,'  does  seem  to  me  to  be  an 
attempt  to  put  a  construction  on  words  which  their  natural  meaning 
will  by  no  means  warrant.  Then  Mr.  Eyre,  the  uncle,  says :  '  My 
will  has  been  made  for  some  time,'  a  fact  which  we  must  assume  to 
be  true,  and  wliich  is  itself  an  answer  to  the  application  to  make  at 
that  time  a  settlement  in  the  nephew's  favor.  Then  the  uncle  goes 
on :  '  I  am  confident  I  shall  never  alter  it  to  your  disadvantage ;  and 
I  repeat,  that  my  Tipperary  estates  will  come  to  you  at  my  death, 
unless  some  unforeseen  occurrence  should  take  place.'  He  says  in 
substance,  I  am  now  on  good  terms  with  you ;  I  will  not  bind  myself 
to  do  what  the  trustees  ask ;  I  have  made  my  will,  and  that  will 
remain  as  it  is,  unless  some  unforeseen  occurrence  should  happen. 
The  marriage,  with  the  consent  of  the  guardians,  took  place,  they 
thinking,  as  they  say,  that  the  letter  was  equivalent  to  a  contract. 
The  trustees  objected  to  the  marriage ;  they  discussed  the  youth  of 
the  lady,  and  other  circumstances ;  and  the  marriage  did  not  in  fact 


AQREEMENT   TO   DEVISE.  249 

take  place  till  nearly  twelve  months  after  the  letter.  If  they  relied 
on  this  letter  as  a  contract,  I  think  that  common  honesty  required 
that  they  should  distinctly  have  brought  that  circumstance  to  the 
uncle's  knowledge.  They  should  have  said :  '  What  is  it  that  you 
mean  ?  is  this  intended  as  a  promise  which  is  to  be  binding  upon 
you,  or  is  it  merely  an  expression  of  kindness  and  good  will  ? '  They 
do  nothing  of  the  sort ;  but  after  some  time,  they  proceed  to  make  a 
settlement.  The  young  man  covenants  that  he  will  settle  this  prop- 
erty if  he  gets  it ;  and  they  accept  that  covenant.  Of  course,  all 
that  he  could  do  was  to  undertake  to  settle  whatever  he  might  after- 
wards receive  imder  this  letter ;  he  did  so  covenant,  and  they  took 
that  covenant." 

The  Lord  Chancellor  proceeds  to  distinguish  this  case  from  that  of 
Hammei'sley  i\  De  Biel,  12  CI,  &  F.  45,  upon  the  ground  that  there 
was  a  contract  to  leave  a  sum  of  money,  whereas  here  was  nothing 
more  than  a  representation  on  which  the  parties  were  said  to  have 
acted.  He  remarks,  (p.  11,)  "Suppose  that  this  gentleman  had  on 
the  eve  of  the  marriage  said  so  the  appellant :  '  You  may  safely  enter 
into  this  marriage,  for  I  have  executed  a  deed  by  which  I  engage  to 
leave  you  such  and  such  estates.'  If,  on  the  faith  of  that  representa- 
tion, the  nephew  had  married,  the  uncle  would  then  have  made  a 
representation  on  which  he  knew  that  the  nephew  would  act,  and 
it  would  be  a  fraud  on  the  nephew,  or  on  those  who  dealt  with  him, 
and  came  aft^r  him,  to  set  up  as  an  answer  that  that  was  a  mere 
intention  which  he  had  entertained  at  the  time.  The  uncle  would,  in 
fact,  have  made  a  contract,  and  he  would  be  compelled  to  make  it 
good,  for  he  would  have  made  a  representation  with  a  view  to  induce 
others  to  act  upon  it,  and  on  the  faith  of  it  they  had,  at  the  moment, 
acted.  There  is  no  middle  term,  no  tertium  quid  between  a  repre- 
sentation so  made  to  be  effective  for  such  a  purpose  and  being  effec- 
tive for  it,  and  a  contract ;  they  are  identical."  Mannsell  v.  White, 
31  Eng.  L.  &  Eq.  1,  9. 


Chap.  I.  p.  1.     Executed  and  Executory  Agreements. 

Interesting  questions  have  recently  arisen,  with  reference  to  the 
rights  and  liabilities  of  public  corporations,  growing  out  of  executory 
agreements  for  the  purchase  of  real  estate. 


250  APPENDIX. 

Agreement  between  one  A.  and  a  railroad  company,  that  he  should 
convey  to  tliera  certain  land,  being  part  of  a  large  tract  belonging  to 
him,  and  that  tlie  company  should  erect  a  depot  thereon.  Afterwards 
the  lot  in  question,  and  most  of  the  entire  tract,  was  sold  and  con- 
veyed by  the  sheriff  to  B. ;  and  subsequently  B.  and  A.,  who  claimed 
some  interest  in  the  land,  conveyed  it  by  separate  deeds  to  the  com- 
pany, in  which  deeds,  after  the  description  of  the  premises,  was  added, 
"  for  the  purposes  and  use  on  which  to  erect  a  permanent  depot  for 
the  accommodation  of  steam-engineS;  &c.,  in  compliance  with  the 
contract  made  between  the  parties  under  date,  &c."  Held,  this  was 
not  a  covenant  nor  the  revival  of  the  agreement,  but  a  mere  declara- 
tion of  the  use  or  purpose  to  which  the  lots  conveyed  were  meant  to 
be  applied.     Sayer  v.  Harlem,  &c.  3  Duer,  54. 

It  has  been  recently  decided  in  Connecticut,  that,  where  an  unex- 
ecuted contract  for  the  purchase  of  real  estate  for  a  public  purpose, 
as  a  highway,  railroad,  &c.,  is  abandoned  by  the  vendee,  and  the 
vendor  retains  possession,  his  remedy  is  not  in  equity,  but  at  law. 
Bill  in  equity  to  enforce  a  contract,  by  which  the  city  of  New  Haven 
agreed  to  purchase  of  the  plaintiff  certain  lands,  and  as  much  of  the 
water  of  Mill  River  as  should  be  required  to  supply  the  city  with 
pure  water,  for  the  consideration  of  $50,000,  and  of  a  covenant  to 
construct  a  costly  dam  and  a  canal  to  convey  for  the  plaintiff's  use 
the  surplus  water  of  the  river.  The  plaintiff  retained  possession  of 
the  property.  Held,  the  suit  could  not  be  maintained,  there  being  a 
complete  remedy  at  law.  Ellsworth,  J.,  says :  "  Our  statute,  as  well 
as  common  law,  forbids  a  party,  that  can  obtain  complete  redress  at 
law,  to  seek  redress  by  specific  execution.  True  it  is,  that,  as  a  gen- 
eral rule,  where  the  purchaser  of  real  estate  can  come  into  a  Court  of 
Equity,  to  obtain  a  deed  of  it,  the  vendor  can  come  there  to  get  his 
money,  which  was  agreed  to  be  paid,  but  the  rule  is  not  universally 
true,  and  it  should  not  be  applied,  we  think,  where  it  will  do  unneces- 
sary mischief  to  one  of  the  parties.  This  is  a  case  of  that  character. 
The  plaintiff  not  only  asks  to  recover  his  money,  but  he  seeks  to 
compel  the  city  to  construct,  at  a  great  expense,  their  water-works, 
with  a  dam  thirty-three  feet  high,  for  an  immense  pond,  or  reservoir 
of  water,  with  a  canal,  for  surplus  water  for  the  plaintiff's  works  ;  or 
if  the  plaintiff  will  be  satisfied,  as  he  may  be,  to  take  a  decree  only 
for  the  fifty  thousand  dollars,  and  not  pursue  the  rest  of  his  prayer, 
then,  we  say,  that  the  remedy  is  unequal  and  oppressive,  and  will  not 


EXECUTED  AND  EXECUTORY  AGREEMENTS.       251 

leave  the  parties  where  they  shoukl  be  left,  and  where  they  will  be 
left,  after  a  recovery  of  damages,  at  law.  Is  it  not  more  equal  and 
just,  that  the  plaintiff  should  recover  his  damages,  whatever  they  may 
be,  and  retain  his  property,  as  it  is,  than  to  force  the  city  to  pay  fifty 
thousand  dollars,  and  go  on  with  the  water-works,  whether  they  will 
use  them  or  not ;  or,  if  the  works  are  not  to  be  constructed,  to  pay 
Mr.  Whitney  the  fifty  thousand  dollars,  and  leave  him,  as  they  neces- 
sarily must  do,  in  that  case,  in  the  undiminished  enjoyment  of  the 
whole  of  this  same  property.  The  truth  is,  the  city  get  nothing  at 
all  for  the  fifty  thousand  dollars,  nor  is  the  plaintiff  to  part  with  any- 
thing for  it.  In  Webb  v.  The  London  and  Portsmouth  Railway 
Company,  9  Eng.  L.  &  Eq.  249,  on  appeal,  the  defendants  had  en- 
tered into  an  agreement  to  purchase  certain  lands,  not  exceeding 
eight  acres,  for  a  proposed  railroad,  and  to  pay  £4,500  for  them,  but 
which  was  not  taken,  though  the  defendants  entered  to  make  a  survey, 
and  estimate,  and  cut  one  tree,  and  the  plaintiff  was  not  otherwise 
disturbed  in  his  possession  and  enjoyment ;  the  Court  held,  that  the 
plaintiff  was  not  entitled  to  a  specific  performance ;  their  language  is, 
"  It  is  the  plain  doctrine  of  the  Court,  that  it  is  not  upon  every  con- 
tract that  the  Court  will  interfere  to  decree  specific  performance.  It 
does  so,  to  give  more  complete  justice  to  a  party,  who  seeks  the  aid 
of  this  Court,  where  a  contract  has  been  entered  into  to  purchase  an 
estate.  It  may  often  happen  that  the  mere  legal  remedy  of  recover- 
ing damages,  for  the  non-performance  of  the  contract  would  afford 
inadequate  relief,  and,  from  the  earliest  time,  it  has  been  the  doctrine 
of  this  Court  to  interfere  to  make  the  party  do  what  he  has  engaged 
to  do,  namely,  convey  the  land  he  has  agreed  to  sell.'  '  But  even  in 
the  case  of  a  suit  by  a  purchaser,  if  there  be  circumstances,  render- 
ing it  unjust  that  the  Court  should  interfere,  the  Court  will  not 
interfere  in  his  favor ;  and  I  should  say,  much  more  readily  will  the 
Court  listen  to  an  objection,  that  is  made  against  a  vendor  seeking  a 
specific  performance ;  because  of  necessity  the  vendor  can  get  com- 
plete redress  at  law.' — '  But  here  it  is  admitted  that  what  the  con- 
tract amounts  to  is  really  this  :  a  contract  to  pay  £5,500,  to  select 
eight  acres  of  the  plaintiff's  land  and  take  it  from  him,  and  for  such 
land,  and  consequential  damage,  to  pay  the  £4,500.' — '  The  amount 
of  damages  to  be  calculated  will  then,  as  I  conceive,  be  a  calculation 
made  on  the  agreement,  as  to  what,  taking  all  the  circumstances 
into  consideration,  will   do  justice*  whereas,  the   relief  that  wouldi 


252  APPENDIX. 

be  afforded  in  this  Court  would  be  positive  injustice.  It  would  be 
giving  to  this  gentleman  £4,500  as  the  purchase-money  for  that 
which  they  had  not  taken,  and  which  I  believe  they  never  can  take.' 
The  same  is  decided  in  Stuart  v.  The  L.  N.  W.  R.  R.  Co.,  11  Eng. 
L.  &  Eq.  112.  Lord  Cranworth  says:  'The  ground  on  which  we 
proceeded  in  Webb,  &c.  was  this  :  that,  whether  it  was  a  contract  or 
not,  the  circumstances  of  the  case  made  it  such,  that  it  was  not  fit 
for  this  Court  to  interfere  by  way  of  specific  performance,  because 
these  two  circumstances  conspired  ;  first,  that  complete  relief  might 
be  obtained  at  law,  if  the  parties  were  entitled  to  any  relief,  and, 
secondly,  the  principle  of  mutuality  wholly  failed,  for  it  was  impos- 
sible for  the  company  to  hold  the  land  for  their  benefit,  in  considera- 
tion of  the  money  they  were  to  pay.'  So  in  Gooday  v.  The  C.  &  S. 
V.  R.  R.  Co.,  15  Eng.  L.  &  Eq.  596, — where  the  company  had  not 
taken  possession  of  the  land,  and  had  abandoned  forever  the  project 
contemplated, — the  Master  of  the  Rolls  says  :  '  Had  there  existed 
any  such  contract,  then  it  has  been  settled,  as  a  rule  of  law,  by  recent 
cases,  that  assuming  a  contract  to  have  existed  between  an  individual 
and  a  railway  company,  and  if  the  undertaking  had  been  abandoned, 
the  Court  will  nevertheless,  in  the  exercise  of  its  discretion,  send  the 
case  to  law.' "     Whitney  v.  New  Haven,  26  Conn.  624,  631. 


Vol.  I.  p.  4. 

In  regard  to  the  equitable  ownership  of  a  purchaser  before  actually 
taking  a  conveyance,  it  has  been  recently  held  in  Pennsylvania,  that, 
although  a  purchaser  has  not  paid  the  purchase-money,  he  is  still  the 
owner  in  equity,  subject  to  the  liability  for  such  payment.  The 
Court  say :  "  When  a  part  of  the  purchase-money  is  paid,  the  intei-est 
of  the  purchaser  in  the  land  is  not  circumscribed  by  the  extent  of 
the  money  paid,  but  embraces  the  entire  value  of  the  land  over  and 
above  the  purchase-money  due.  He  is  treated  as  the  owner  of  the 
whole  estate,  incumbered  only  by  the  purchase-money.  If  the  land 
increase  in  value,  it  is  his  gain  ;  if  it  decrease,  if  improvements  are 
destroyed  by  fire  or  otherwise,  it  is  his  loss."  Siter's  Appeal,  26 
Penn.  178,  180.  • 


CONTRACT  REQUIRES  ACCEPTANCE.  253 


Vol.  I.  p.  14.     Contract  requires  Acceptance. 

Upon  the  distinction  between  a  contract  and  a  mere  offer,  the  fol- 
lowing case  lately  occurred  in  England  : — 

Parties  wishing  to  construct  a  railroad,  on  the  ivay-leave  principle, 
entered  into  negotiations  with  a  land-owner,  and  proposed  terras, 
which  were  discussed  but  not  agreed  to ;  but  the  company  proceeded 
to  make  the  road.  Held,  the  land-owner's  acquiescence  did  not 
amount  to  an  acceptance  of  the  terms  proposed.  Meynell  v.  Surtees, 
31  Eng.  L.  &  Eq.  475. 

In  the  same  case,  an  iron  company,  the  owners  of  a  railway,  wish- 
ing to  make,  on  the  principle  of  way-leave,  a  branch  of  their  road  to 
connect  it  with  other  roads,  applied  to  the  several  land-owners,  in- 
cluding one  A.,  for  the  necessary  way-leaves,  and  received  a  proposal 
from  them  that,  as  they  wished  to  procure  Stanhope  lime  for  agricul- 
tural purposes,  and  believed  the  railroad  would  be  of  great  advan- 
tage to  the  district,  &c.,  they  offered  the  iron  company  way-leaves 
over  their  property  on  lease  for  sixty  years,  by  payment  of  triple 
damages  yearly.  This  proposal  was  signed  by  A.  and  accepted  by 
the  company,  who  thereupon  agreed  with  the  plaintiffs,  directors  of 
another  railway,  who  were  to  make  the  line.  The  railway  company 
took  possession  according  to  the  offer,  and  the  railway  was  made  at 
great  expense,  with  the  knowledge  and  without  any  objection  of  the 
land-owners.  Held,  there  had  been  a  variation  in  the  parties  and 
subject-matter  of  the  offer,  by  changing  a  railway  made  for  mineral 
traffic  into  one  for  general  public  conveyance.  Also,  that  the  instru- 
ment  signed  by  A.  contained  no  such  acceptance  of  the  offer  as  bound 
the  land-owners  to  grant  a  lease  at  a  rent  on  the  principle  of  triple 
damages.  Lord  Cranworth,  Lord  Chancellor,  remarked :  "  It  does 
not  purport  to  be  a  contract  upon  the  face  of  it.  It  is  a  mere  offer 
that  they  will  give  way-leaves  upon  certain  specified  terms  ;  and  if 
the  parties  to  whom  that  offer  was  made  had  accepted  it,  and  said  : 
*  We  agree  to  that,'  or  if  they  had  either  done  so  by  writing,  or  had, 
without  writing,  by  word  of  mouth  said,  '  We  will  act  upon  it,'  and 
had  taken  it,  no  doubt  this  Court  might  have  treated  that  as  a  con- 
tract, but  an  offer  is  a  very  different  thing.  When  I  offer  any  thino- 
to  a  person,  what  I  mean  is,  I  will  do  that  if  you  choose  to  assent  to 
it ;  meaning,  although  it  is  not  so  expressed,  if  you  choose  to  assent 
VOL.  II.  22 


254  APPENDIX. 

to  it  in  a  reasonable  time.  Whether  that  is  expressed  or  not,  such 
an  offer,  I  should  say,  undoubtedly,  even  at  any  time,  if  it  is  not 
promptly  accepted,  is  evidently  from  the  nature  of  things  revocable." 
Meynell  v.  Surtees,  31  Eng.  L.  &  Eq.  475,  479. 


Vol.  I.  p.  21.      Consideration. 

"With  regard  to  the  consideration  of  a  contract  connected  with  the 
sale  and  purchase  of  land,  it  has  been  lately  held,  in  Pennsylvania, 
that  the  promise  of  a  vendor  to  indemnify  the  vendee  for  his  improve- 
ments, if  the  title  warranted  fails,  is  founded  on  sufficient  consideration, 
and  assumpsit  lies  upon  it.  The  Court  say  :  "  As  things  turned  out, 
neither  of  the  parties  received  any  benefit  from  the  improvements  ; 
but  that  was  not  the  plaintiff's  fault.  To  make  a  promise  binding  in 
law,  it  is  not  necessary  that  the  promisor  should  derive  any  advan- 
tage from  it.  It  is  enough  that  the  promisee  has  encountered  trouble, 
assumed  a  burden,  or  suffered  a  loss.  Here  was  a  person  making  a 
purchase  of  land.  He  had  so  little  faith  in  the  title  that  he  would 
neither  pay  the  purchase-money  nor  make  improvements  which  were 
necessary  to  its  profitable  use  without  some  guaranty  against  the 
ultimate  loss  of  his  whole  outlay.  But  he  had  confidence  in  his  ven- 
dor, and  was  willing  to  accept  his  personal  warranty  in  place  of  a 
good  title.  It  does  not  seem  to  us  that  it  makes  any  difference 
whether  the  contract  concerning  the  improvements  was  made  before 
or  after  the  date  of  the  deed.  The  deed  did  not  alter  the  situation 
of  the  parties,  or  make  any  change  in  the  title,  for  the  grantor  had 
no  title  to  convey.  The  conditions  or  terms  of  a  sale,  and  the  quan- 
tity of  estate  granted  are  to  be  looked  for  in  the  final  deed  of  con- 
veyance, and  not  in  any  articles  of  agreement  which  may  have  pre- 
ceded it.  But  to  us  it  appears  that  the  contract  on  which  this  suit  is 
founded  has  no  such  relation  to  the  deed  referred  to.  It  does  not 
concern  the  sale  or  the  transfer  of  the  title.  It  is  a  promise  to  do 
another  thing.  The  consideration  is  wholly  distinct,  and  the  subject 
of  the  contract  is  a  different  thing."  Richardson  v.  Gosser,  26  Penn. 
335,  336. 


CONSIDERATION. — CONTRACTS    BY   HUSBAND    AND    WIFE.      255 

Vol.  I.  p.  56  ;  Vol.  II.  p.  191.      Contracts  by  Husband  and  Wife. 

As  has  been  seen,  contracts  to  sell  land,  made  by  husband  and 
wife,  have  given  occasion  to  many  conflicting  decisions.  In  the  late 
case  of  Clarke  v.  Reins,  12  Gratt.  98,  it  was  held  that  equity  will 
not  decree  specific  performance  of  a  contract  by  husband  and  wife  to 
sell  her  land,  as  against  her.  Nor  will  it  compel  him  to  convey  his 
life  estate,  with  compensation  for  the  loss  of  her  estate.  Daniel,  J., 
(p.  1 05,)  gives  the  following  view  of  the  decisions  upon  these  points : 
"  The  question  whether  a  Court  of  Equity  will,  under  any  circum- 
stances, decree  against  a  husband  the  specific  performance  of  a  con- 
tract on  his  part  to  procure  the  conve^mnce  by  his  wife  of  her  real 
estate,  is  one  which  cannot  be  regarded  as  yet  definitively  settled  in 
England.  In  the  reports  of  the  earlier  cases,  numerous  precedents 
may  be  found  in  which  the  power  of  the  Chancellor  to  make  such 
decrees  has  been  asserted  and  enforced.  Thus,  the  case  of  Hall  u. 
Hardy,  3  P.  Wms.  187,  in  which,  upon  a  submission  of  a  dispute 
touching  the  fee  simple  of  a  parcel  of  land,'the  arbitrators  awarded 
that  the  defendant  should  procure  his  wife  to  join  with  him  in  a  fine 
and  deed  of  uses,  and  thereby  convey  the  premises  to  the  plaintiff 
and  his  heirs,  the  Master  of  the  Rolls,  Sir  Joseph  Jekyll,  decreed  a 
specific  performance  of  the  award  ;  prefacing  the  decree  with  the 
remark  that  there  had  been  a  hundred  precedents,  where  if  the  hus- 
band, for  a  valuable  consideration,  covenants  that  the  wife  shall  join 
with  him  in  a  fine,  the  Court  ha?  decreed  the  husband  to  do  it.  In 
some  of  the  cases  of  a  later  date,  however,  the  propriety  of  making 
such  decrees  has  been  seriously  questioned,  and  in  others,  positively 
denied  ;  as  in  Emery  v.  Wase,  8  Ves.  R.  505  ;  Davis  v.  Jones,  4  Bos. 
&  Pull.  267 ;  and  Martin  v.  Mitchell,  2  Jac.  &  Walk.  413.  And 
whilst  it  cannot  perhaps  be  said  that  the  English  Chancery  has  fully 
disclaimed  the  power,  it  may,  I  think,  be  safely  afiirmed,  that  the 
current  of  professional  feeling  and  sentiment  in  England  is  rapidly 
tending  to  a  conviction  of  the  impolicy,  cruelty,  and  unfairness  of  .a 
rule  which  constrains  the  wife  indirectly  through  the  sufferings  of  the 
husband,  to  do  that  which  the  Courts  have  long  since  repudiated  their 
right  to  coerce  her  to  do  directly.  In  the  case  of  Emery  v.  Wase, 
Lord  Eldon  said,  that  the  argument  showed  '  the  point  was  not  so 
well  settled  as  it  was  understood  to  be.     The  policy  of  the  law  is, 


256  APPENDIX. 

that  a  wife  is  not  to  part  with  her  property  but  by  her  own  sponta- 
neous and  free  will.  If  this  was  perfectly  res  Integra^  I  should  hesi- 
tate long  before  I  should  say  the  husband  is  to  be  understood  to  have 
gained  her  consent,  and  the  presumption  is  to  be  made  that  he  obtained 
it  before  the  bargain,  to  avoid  all  the  fraud  that  may  afterwards  be 
practised  to  procure  it.  The  purchaser  is  bound  to  regard  the  policy 
of  the  law,  and  what  right  has  he  to  complain  if  she,  who  according 
to  law,  cannot  part  with  her  property  but  by  her  own  free  will,  ex- 
pressed at  the  time  of  that  act,  of  record,  takes  advantage  of  the 
locus  penitenticB  ;  and  why  is  he  not  to  take  his  chance  of  damages 
against  the  husband  ? '"  See  also  1  Rop.  H.  &  W.  547-8  ;  1  Bright, 
191  ;  M'Cann  v.  Janes,  1  Rob.  256;  Evans  v.  Kingsberry,  2  Rand. 
120 ;  Watts  V.  Kenney,  3  Ifcigh,  272. 


Vol.  I.  p.  64,  and  note.      Contract  by  Agent. 

With  regard  to  the  validity  of  a  deed  of  land  made  by  an  agent, 
in  the  case  of  Gage  v.  Gage,  10  Fost.  420,  it  was  held,  that  a  power 
of  attorney  to  convey,  in  order  to  make  the  deed  effectual,  ought  to 
be  as  certain  as  the  deed  itself  is  required  to  be ;  as,  for  instance,  to 
be  attested  by  two  witnesses,  the  deed  being  required  by  statute  to  be 
thus  attested.  Eastman,  J.,  gives  the  following  view  of  previous 
decisions  upon  this  subject,  (p.  423)  :  "  In  Lumbard  v.  Aldrich,  8 
N.  H.  31,  it  was  held,  in  general  terms,  that  a  power  of  attorney 
ought  to  be  as  certain  as  it  is  necessary  for  the  deed  to  be  which  is 
to  be  executed  under  it.  But  the  particular  formalities  required  in 
the  execution  of  a  power  of  attorney  were  not  specially  considered. 
In  Montgomery  v.  Dorion,  6  N.  H.  Rep.  252,  it  was  said  by  Parker, 
J.,  that  the  statute  indicates  that  powers  of  attorney  were  intended 
by  the  Legislature  to  be  placed  on  the  same  ground  as  the  deeds 
which  might  be  made  under  them.  And  the  remarks  of  the  Court 
in  Southerin  v.  Mendum,  5  N.  H.  Rep.  428,  are  of  a  like  import. 
In  Society  for  Propagating  the  Gospel  v.  Young,  2  N.  H.  Rep.  312, 
Woodbury,  J.,  appears  to  express  the  opinion  that  a  power  of  attorney 
should  be  as  formal  as  the  deed.     Story,  in  his  work  on  Agency,  after 


*  CONTRACT   BY   AGENT.  257 

laying  down  the  rule  that  an  agent  or  attorney  may  ordinarily  be 
appointed  by  parol,  says  that  one  exception  is,  that,  wherever  any 
act  of  agency  is  required  to  be  done  in  the  name  of  the  principal, 
under  seal,  the  authority  to  do  the  act  must  be  conferred  by  an  instru- 
ment under  seal.  Thus,  for  example,  if  the  principal  would  authorize 
an  agent  to  make  a  deed  in  his  name,  he  must  confer  the  authority 
on  the  agent  by  a  deed.  A  mere  unsealed  writing  will  not  be  suf- 
ficient to  make  the  execution  of  the  deed  valid  at  law,  though  the 
Court  of  Equity  might,  in  such  case,  compel  the  principal  to  confirm 
and  give  validity  to  the  deed.  Story  on  Agency,  ch.  5,  p.  48,  50. 
These  authorities,  it  will  be  perceived,  do  not  come  precisely  to  the 
point  raised  in  this  case,  although  they  have  a  general  bearing  upon  it. 

"  The  case  of  Clark  v.  Graham,  6  Wheat.  577,  has  a  direct  appli- 
cation. It  was  there  held  that  a  power  to  convey  lands  must  possess 
the  same  requisites  and  observe  the  same  solemnities  as  are  necessary 
in  a  deed  directly  conveying  the  lands. 

"  This  is  the  only  case  that  we  have  met  with  that  is  directly  in 
p6int.  But  we  think  that  the  rule  as  there  stated  is  the  correct  one, 
and  that  such  should  be  the  doctrine  in  a  Court  of  Law.  An  agent 
should  not  have  the  power  to  do  an  act  where  the  instrument  giving 
him  the  power  is  incomplete — where  it  lacks  a  requisite  which  would 
be  essential  in  performing  the  act  itself.  Should  it  at  any  time  appear 
that  the  principles  of  good  conscience  would  be  infringed  by  this 
rule,  equity  might,  perhaps,  interfere  to  make  such  decrees  as  would 
be  deemed  right." 

In  conformity  with  the  general  rule  stated  in  the  text,  as  to  the 
validity  of  a  verbal  authority  to  sell,  given  to  an  agent ;  it  was  held, 
in  the  case  of  Newton  v.  Bronson,  3  Kern.  587,  that,  although  an  ex- 
ecutor or  other  trustee  cannot  authorize  an  agent  to  sell,  the  trust 
being  a  personal  one ;  still  the  principifl  may  subsequently  ratify  such 
sale.  Also,  that  an  agent  may  validly  sell  lauds  without  authority  in 
writing,  and  such  sale  made  by  the  agent  in  the  name  of  the  principal 
may  be  validly  ratified  by  the  latter,  by  parol.  But,  where  the 
principal  could  not  delegate  authority  to  make  the  contract,  the  ratifi- 
cation must  be  in  writing,  and  in  such  form  as  would  have  been  valid 
if  he  had  made  the  contract. 
22* 


258  APPENDIX. 


Vol.  T.  p.  78.     Auction. — Puffing. 

It  has  been  held  in  a  late  case  in  Missouri,  that  it  is  not  fraudulent 
for  a  debtor  to  employ  a  person  to  buy  in  his  property  at  sheriff's 
sale,  merely  to  prevent  a  sacrifice.     Lee  v.  Lee,  9  Mis.  420. 


Vol.  I.  p.  8L     Auction. —  Unlawful  Comhination. 

Upon  the  subject  of  a  combination  to  reduce  the  price  of  jtroperty 
sold  at  auction,  it  has  been  lately  held  in  Pennsylvania,  that  an  agree- 
ment of  a  bidder  at  sheriff's  sale,  to  pay  the  judgment  of  a  creditor 
if  he  would  refi'ain  from  bidding,  is  fraudulent  and  void.  SlinglufF  v. 
Eekel,  24  Penn.  472.  Black,  J.,  says,  (p.  473) :  "  Can  this  contract 
be  enforced  ?  Is  it  not  against  public  policy  as  well  as  good  morals, 
and  therefore  void  ?  We  all  think  it  is.  A  debtor,  whose  property 
is  taken  in  execution,  has  a  I'ight  to  have  it  sold  for  the  highest  jjrice 
that  it  will  bring.  If  two  persons  be  present  who  are  both  willing 
to  give  a  certain  sum,  and  one  of  them  pays  to  the  other  a  portion 
of  what  he  would  otherwise  bid  for  the  land,  the  owner  is  cheated 
exactly  to  that  extent.  The  debtor  not  being  a  party  to  the  contract, 
nor  assenting  to  it,  we  cannot  perceive  that  it  makes  any  difference 
whether  the  person  thus  bought  off  be  a  volunteer,  expecting  to  pay 
his  bid  in  cash,  or  a  lien-creditor  desiring  to  purchase,  in  order  to 
save  himself.  Either  way  the  debtor's  interest  may  be  sacrificed. 
Besides,  there  may  be  other  creditors  whose  rights  would  be  affected 
by  it.  The  point  has  never  before  been  directly  ruled  in  this  Court, 
but  we  have  often  declared  the  general  principle  that  all  judicial  sales 
must  be  open  to  free  and  fair  competition.  In  more  than  one  case 
we  have  decided  that  any  device  by  which  the  purchaser  at  sheriff's 
sale  gets  land  at  an  under  price  is  a  fraud,  which  will  make  his  title 
totally  void.  It  certainly  follows  from  this  that  a  contract  to  do  that 
which  must  necessarily  result  in  lowering  the  price  and  so  defrauding 
the  debtor  or  his  creditors,  must  be  void  also.  In  several  of  the 
other  States  there  have  been  cases  so  nearly  like  this  that  they  are 


AUCTION. UNLAWFUL   COMBINATION.  259 

not  to  be  distinguished.  It  is  sufficient  to  mention  Jones  v.  Caswell, 
2  Johns.  Cas.  29,  and  Thompson  v.  Davis,  13  Johns.  Rep.  112.  It  is 
not  now  proper  to  decide  how  far  several  persons,  who  would  other- 
wise bid  against  each  other  at  sheriff's  sale,  may  associate  themselves 
together,  unite  their  interests,  and  allow  one  to  bid  for  all.  What  we 
do  decree  is,  that  one  bidder  cannot  legally  buy  off  another  with 
money  or  the  promise  of  money." 

In  the  same  State  it  is  held,  that  a  declaration  made  by  a  pur- 
chaser at  sheriff's  sale,  that  he  is  buying  for  the  benefit  of  the  debtor, 
intending  to  give  hira  the  property,  if  true,  is  not  fraudulent,  although 
it  reduces  the  price  of  the  property.  Dick  v.  Cooper,  24  Penn.  217. 
Black,  J.,  says,  (p.  221):  "To  avoid  the  title  of  a  purchaser  at 
sheriff's  sale,  it  is  necessary  to  show  that  he  was  guilty  of  some  de- 
ception. Where  one  is  buying  for  himself,  but  falsely  declares  that 
his  purchase  shall  enure  to  the  benefit  of  the  debtor  or  his  family, 
and  this  is  done  as  a  mere  trick  to  prevent  competition,  and  thus  get 
the  property  at  an  under  price,  he  acquires  no  title.  But  to  say  that 
he  intends  to  give  it  to  the  debtor  or  let  him  redeem  it,  when  such  is 
really  his  intention,  is  no  fraud.  It  is  generous — perhaps  it  is  impru- 
dent— but  imprudent  generosity  is  not  a  crime.  One  who  chooses  to 
run  the  risk  may  lawfully  buy  in  property  for  a  debtor  and  leave  it 
with  him  on  any  sort  of  contract  he  chooses  to  make.  If  it  be  lawful 
to  do  a  thing,  it  cannot  be  wrong  for  a  man  to  say  openly  and  candidly 
that  he  intends  to  do  it.  We  have  decided  lately,  in  several  cases 
not  yet  reported,  that  to  make  the  purchase  void  it  must  be  proved 
that  the  property  was  obtained  at  an  under  value,  and  by  means  of  a 
false  representation." 

In  a  late  case  in  Illinois,  at  a  commissioner's  sale  under  a  decree 
for  partition,  the  purchaser  publicly  asserted  a  claim  to  the  i^roperty, 
and  threatened  to  litigate  it,  and  thereby  prevented  parties  from  bid- 
ding as  much  as  they  otherwise  would.  Held,  a  fraud  for  which  the 
sale  should  be  set  aside.  Scates,  J.,  says  :  "  If  he  desired  to  become 
a  bidder,  it  was  essential  to  fairness  towards  the  petitioner  that  he 
should  conceal  or  forbear  to  assert  his  adverse  claim,  whatever  conse- 
quence might  result  therefrom  to  his  interest.  It  is  not  competent 
for  him  to  assert  his  claim  to  the  premises  by  a  public  announcement 
at  the  biddings,  with  a  threat  to  litigate  it  with  any  purchaser,  and 
then  enter  into  competition  in  the  biddings,  and  purchase  at  an  under 
value  occasioned  by  the  depreciation  his  own  conduct  had  produced. 


2G0  APPENDIX. 

If  it  were  essential  for  the  protection  of  his  claim  to  give  notice  and 
make  it  known  at  the  sale,  he  therehy  disqualified  himself  to  bid  or 
become  a  purchaser  of  this  adverse  title  at  such  sale.  He  shall  not 
be  allowed  to  depreciate  or  destroy  the  value  of  the  land  by  denying 
the  title,  then  buy  it  at  a  depreciation  thus  produced;  and  claim  to  be 
a  fair  purchaser."     Coffey  v.  Coffey,  16  111.  141. 


Vol.  I.  p.  104,     Statute  of  Frauds. — Trees. 

It  has  been  seen,  that  great  diversity  of  opinion  has  prevailed,  as 
to  the  application  of  the  Statute  of  Frauds  to  the  sale  of  growing 
products  of  the  soil.  In  the  late  case  of  Buck  v.  Pickwell,  1  Wms. 
(Verm.)  157,  it  was  held,  that  an  agreement  for  the  sale  of  groioing 
trees,  with  a  right  in  the  purchaser  at  any  future  time  to  take  and  cut 
them  as  he  may  want  them,  is  within  the  Statute  of  Frauds  ;  that  no 
action  lies  upon  it,  nor,  while  executory,  can  it  in  any  way  be  made 
available  as  a  contract.  If  made  for  valuable  consideration,  the  ven- 
dee has  a  valid  title  to  any  trees  which  he  may  cut ;  but  not  such  a 
title  to  those  which  remain,  he  not  having  taken  exclusive  possession 
of  the  land,  as  will  sustain  an  action  against  one  who  enters  and  cuts 
and  carries  away  trees  ;  although  the  vendee  have  paid  the  full  con- 
sideration. It  was  further  held,  that  an  exception  in  a  subsequent 
conveyance  of  the  land,  of  the  trees  previously  sold,  is  not  a  sufficient 
memorandum  within  the  statute.  Bennett,  J.,  says,  (p.  163):  "It 
may,  perhaps,  with  some  degree  of  certainty  be  said,  that  at  the 
present  day,  a  contract  for  the  sale  of  growing  crops,  produced  annu- 
ally by  labor  and  the  cultivation  of  the  earth,  and  which  are  included 
within  the  meaning  of  the  term  '  emblements,'  is  not  a  contract  for 
the  sale  of  land,  or  any  interest  in  it,  or  concerning  it,  and  that  it  is 
not  material  whether  they  have  come  to  maturity  or  not  at  the  time 
of  the  sale  ;  or  whether  they  are  to  be  cut  and  taken  off  of  the 
ground  by  the  vendor,  or  the  vendee.  There  would  seem  to  be  some 
reason  for  making  a  distinction  between  a  growing  crop  of  grass  or 
gi'owing  trees,  and  a  field  of  wheat  or  corn  or  other  emblements. 
Emblements  seem  to  be  distinct  from  the  real  estate,  and  subject  to 


STATUTE    OF   FRAUDS. — TREES.  261 

many  ot  the  incidents  attending  personal  chattels.  But  the  word 
la7id  is  comi)rehen5ive  in  its  meaning,  and  comprehends  growing 
grass  and  standing  trees.  Standing  trees  must  be  regarded  as  part 
and  parcel  of  the  land  in  which  they  are  rooted.  The  case  of  Dunn 
V.  F'erguson,  cited  in  2  Steph.  N.  P.,  from  Hayes  (Irish)  542,  marks 
well  the  distinction,  and  the  grounds  upon  which  the  sale  of  a  growing 
crop  is  not  a  contract  for  an  interest  in  land.  The  case  was,  the  de- 
fendant sold,  by  verbal  contract,  to  the  plaintiff,  a  crop  of  turnips, 
which  he  had  previously  sown  ;  and  some  time  after,  and  while  the 
turnips  were  in  the  ground,  the  defendant  dug  them  and  carried  them 
away.  Chief  Baron  Joy  says  :  '  "Whether  there  has  been  a  contract 
concerning  an  interest  in  land,  or  whether  it  merely  concerns  goods 
and  chattels,  must  depend  upon  the  question,  whether  a  growing  crop 
is  goods  and  chattels  ;'  and  upon  this,  he  says,  'the  decisions  have 
been  very  contradictory,  a  result  always  to  be  expected  when  the 
Judges  give  themselves  up  to  fine  distinctions.'  The  Court  in  that 
case,  base  their  decision  upon  the  ground  that  at  common  law,  grow- 
ing crops  were  uniformly  held  to  be  goods,  and  subject  to  all  the 
leading  consequences  of  being  goods,  and  that  the  Statute  of  Frauds 
took  things  as  it  found  them,  and  provided  for  lands  and  goods  accord- 
ing as  they  were  esteemed  at  the  time  of  its  enactment.  This  seems 
to  put  the  case  on  some  tangible  ground.  If  before  the  statute,  a 
growing  crop  had  been  held  to  be  an  interest  in  lands,  under  the 
statute,  a  contract  respecting  it  must  have  been  to  give  it  vitality,  in 
writing,  "We  think  the  whole  current  of  modern  law  is  in  conformity 
to  the  distinctions  marked  out  in  the  case  of  Dunn  v.  Ferguson,  and 
it  is  thus  put  upon  some  rational  ground.  It  would  seem  to  follow  as 
a  necessary  corollary,  that  a  contract  for  the  sale  of  standing  trees, 
with  a  right,  at  a  future  time,  to  enter  upon  the  land  to  remove  them, 
did  concern  an  interest  in  land." 

Upon  another  point  in  the  case,  the  learned  Judge  remarks  (p,  167)  : 
"  "We  apprehend  that  the  execution  of  the  deed  by  Ozias  Story  to 
Seneca  E.  Parks,  containing  the  exception  of  the  timber  he  had  pre- 
viously sold  to  the  present  plaintiff,  cannot  be  tortured  into  any  such 
memorandum  of  the  contract  between  the  plaintifT  and  Stoi-y,  as  the 
Statute  of  Frauds  requires.  It  is  not  a  paper  executed  by  Story  to 
the«present  plaintiff;  and  it  contains  no  specification  of  the  terms  of 
the  parol  contract  whatever,  between  Story  and  the  plaintiff,  and  no 
allusion  to  them.     To  hold  that  the  exception  is  a  sufficient  memoran- 


2(52  APPENDIX. 

dum  would  be  in  effect  to  repeal  the  Statute  of  Frauds.  The  memo- 
ranflnm  must  contain  the  substantial  terms  of  the  contract  expressed 
with  such  certainty,  that  they  may  be  understood  from  the  contract 
itself,  or  some  other  writing  to  which  it  refers." 


Vol  I.  p.  116.     Statute  of  Frauds. — Signing,  etc. 

It  has  been  seen  that  many  questions  have  arisen  as  to  the  form, 
time,  &c.,  of  execution  of  a  writing,  and  the  party  by  whom  it  shall 
be  executed,  in  order  to  comply  with  the  requisitions  of  the  statute. 
In  the  case  of  Fessenden  ik  Mussey,  11  Cush.  127,  Thomas,  J.,  gives 
the  following  opinion  :  "  Assumpsit  for  the  price  of  a  pew  in  the 
Bulfinch  Street  Church,  Boston,  sold,  as  the  plaintiff  alleges,  by  her 
to  the  defendant.  The  defendant,  among  other  grounds  of  defence, 
relied  upon  the  Statute  of  Frauds.  The  pew  was  sold  at  auction, 
and  in  the  recoi'd  of  sales  kept  by  the  auctioneer  was  this  entry : 
'  Sale  of  pew  in  Bulfinch  Street  Church,  for  ace.  Selinda  Fessenden. 
Monday,  March  24,  1845.  Pew  No.  ,18.  Benj.  Mussey,  $112.50. 
Charges,  advertising,  and  commission,  $5.'  If  this  memorandum  was 
made  at  the  time  and  place  of  sale,  by  the  auctioneer,  or  his  clerk, 
then  acting  under  his  direction,  we  think  it  is  sufficient.  Gill  v. 
Bicknell,  2  Cush.  355  ;  Morton  v.  Dean,  13  Met.  385.  It  designates 
clearly  what  was  sold,  by  whom,  to  whom,  the  time  when,  and  the 
price.  The  middle  name  of  the  purchaser  is  omitted,  but  it  w^as 
competent  to  show  by  parol  that  defendant  was  intended,  or  that  de- 
fendant was  well  known  by  the  name,  or  that  he  subsequently  recog- 
nized the  signature.  As  to  terms  of  payment,  the  presumption  of 
law  in  the  absence  of  an  express  stipulation  is,  that  it  was  for  cash, 
payable  on  a  tender  of  a  deed. 

A  newspaper  advertisement  offered  land  of  the  advertiser  for  sale 
at  auction,  upon  the  terms  therein  stated;  one  of  which  was,  that 
one  third  of  the  pi'ice  should  be  paid  down.  The  sale  took  place, 
but  no  further  writing  was  made,  nor  the  money  paid.  Held,  insuf- 
ficient to  pass  an  interest  in  the  land,  and  that  no  action  would  lienfor 
the  price.     Kurtz  v.  Cummings-,  24  Penn.  35. 

A  widow  joined  with  all  but  one  of  the  heirs  of  her  husband,  in  a 


STATUTE   OF   FRAUDS. — SIGNING,   ETC.  263 

bond  to  sell  their  respective  interests  in  her  husband's  real  estate  at 
public  auction,  she  to  receive  for  her  life  estate  whatever  might  be- 
long to  her  in  accordance  with  the  usual  custom  of  calculating  the 
value  of  life  estates.  On  the  13th  of  May,  a  proposal  to  purchase 
was  made  at  an  auction,  by  the  bid  of  a  certain  sum,  but  no  written 
agreement  was  executed,  nor  was  there  any  memorandum  made  by 
the  auctioneer  sufficient  to  bind  the  parties  under  the  Statute  of 
Frauds  ;  and  the  other  heir  had  not  then  agreed  to  sell.  Four  days 
afterwards,  the  widow  committed  suicide.  On  the  9th  of  June,  all 
the  heirs  conveyed  to  the  auction  purchaser,  dating  the  deed  May 
13th.  The  plaintiff,  as  administrator  of  the  widow,  brings  this  action 
for  her  share  of  the  proceeds  of  sale  against  one  of  the  heirs,  who 
had  received  one  portion  of  such  proceeds  for  himself  and  another  as 
guardian  of  a  minor  heir.  Held,  the  action  could  not  be  maintained. 
Dewey,  J.,  says  (in  substance)  :  "  She  did  not  perform  the  act  stipu- 
lated in  the  bond,  as  the  consideration  for  her  receiving  her  proper 
share  of  the  proceeds  of  the  sale.  This  claim  cannot  therefore  be 
enforced  by  her  administrator  as  a  claim  arising  upon  a  specific  per- 
formance of  her  contract.  The  only  valid  contract  was  that  of  the 
9th  of  June.  The  ante  dating  of  the  deed,  as  of  13th  May,  had  no 
legal  opei'ation  to  make  it  take  effect  on  that  day.  The  date  written 
in  a  deed  is  of  no  effect.  It  is  the  time  of  the  actual  execution,  that 
fixes  the  rights  under  it.  On  the  9th  of  June,  a  change  of  the  interest 
of  the  heirs  at  law  had  occurred.  Previous  to  the  decease  of  Anna 
Carter,  she  held  the  land  subject  to  her  right  of  dower.  After  that 
event  they  held  in  themselves  an  unincumbered  title.  There  was  on 
9th  June  no  incumbrance  of  a  widow's  I'ight  of  dower.  During  her 
lifetime  no  money  was  paid  or  tendered  to  her.  Upon  her  death  all 
her  interest  in  the  bond  was  gone.  She  had  parted  with  nothing  by 
any  conveyance  of  hers,  and  no  remaining  interest  of  hers  could  have 
been  conveyed  by  her  administrator  under  any  authority  to  carry  into 
effect  her  contracts,  inasmuch  as  her  interest  was  personal,  and  ter- 
minated at  her  death."     Fletcher  v.  Carter,  10  Cush.  81,  84. 


264  APPENDIX. 


Vol.  I.  p.  12o.     License. 

Some  late  cases  bear  upon  various  points  connected  with  the  sub- 
ject of  License.  The  case  of  Lakin  v.  Ames,  10  Cush.  199,  was  an 
action  of  trespass  for  tearing  down  a  horse  shed,  and  one  of  the 
defences  was,  that  the  shed  was  so  erected  in  front  of  a  tomb,  lawfully 
on  a  buiying-ground,  as  to  obstruct  the  entrance  tliereto,  and  that  the 
defendant,  having  the  legal  right  to  open  the  tomb,  and  deposit  a 
corpse  therein,  peaceably  removed  the  shed  for  that  purpose,  doing 
no  unnecessary  damage.  The  facts  of  the  case,  and  the  judgment  of 
the  Court  thereupon,  sufficiently  appear  from  the  following  remarks 
of  Bigelow,  J.,  (p.  219)  :  "The  vote  by  which  Jonas  S.  Varnum  and 
others  had  liberty  to  build  two  or  more  tombs  in  the  graveyai'd,  under 
the  direction  of  the  selectmen,  and  the  erection  of  said  tombs,  in 
pursuance  of  such  directions,  operated  as  a  valid  grant  by  vote,  to 
erect  and  use  a  tomb  by  said  Varnum,  with  a  right  of  access  thereto, 
as  the  same  was  then  constructed  and  subsequently  used.  Damon  v. 
Granby,  2  Pick.  345,  351.  It  would  be  absurd  and  contrary  to  all 
rules  of  construction,  to  hold  that  this  was  a  grant  of  a  mere  right  to 
build  a  tomb,  without  the  necessary  right  appurtenant  thereto,  of 
access  to  it  over  the  common,  and  of  entering  it  in  the  mode  provided 
under  the  authority  and  direction  of  the  agents  of  the  town.  There 
can  be  no  doubt,  therefore,  of  the  right  of  the  mother  of  the  defend- 
ant, or  of  any  person  acting  under  a  license  or  authority  from  her, 
to  enter  the  tomb  for  the  purpose  of  placing  there  the  body  of  her 
deceased  son,  to  remove  all  obstructions  which  would  prevent  or 
hinder  the  right  of  sepulture  from  being  there  performed  in  a  decent 
and  becoming  manner.  The  learned  counsel  for  the  plaintiff  have 
put  this  case  mainly  upon  the  want  of  authority  on  the  part  of  the 
defendants  to  act  in  the  mother's  behalf  But  the  law  will  imply  a 
license  from  the  necessities  of  individuals  and  from  the  usages  of  the 
community.  Thus  it  has  been  held  that  the  entiy  upon  another's 
close,  or  into  his  house,  at  usual  and  reasonable  hours,  and  in  a  cus- 
tomary manner,  for  any  of  the  common  purposes  of  life,  cannot  be 
regarded  as  a  trespass.  It  cannot  be  that  it  is  necessary  to  produce 
formal  proof  of  authority  from  a  mother  to  a  son  to  do  all  that  was 
necessary  and  proper  for  the  burial  of  her  deceased  son  in  the  family 
tomb.     The  law  will  imply  a  license  from  the  nature  and  exigencies 


LICENSE.  265 

of  the  case,  the  relation  of  the  parties,  and  the  well-established 
usages  of  a  civilized  and  Christian  community." 

It  has  been  recently  held  in  New  York,  that  a  parol  license  to 
divert  water  from  a  watercourse,  so  as  to  prevent  it  from  passing 
over  another's  land,  is  valid.  Rathbone  v.  M'Connell,  20  Barb. 
311.  Strong,  J.,  thus  refers  to  the  course  of  decisions  upon  this 
subject :  "  In  Pierrepont  v.  Barnard,  2  Seld.  279,  it  was  held,  that  a 
parol  license  by  the  owner  of  land  to  cut  and  carry  away  standing 
timber,  fully  executed  before  revocation,  was  a  complete  protection 
for  what  was  done  under  it.  The  principle  of  that  case  is  directly 
in  point.  The  trees  were  as  much  a  part  of  the  freehold  as  the  right 
to  the  use  of  the  water.  (Green  v.  Armstrong,  1  Denio,  550.)  The 
diversion  of  the  latter  might  be  justified  under  a  license,  as  well  as 
the  cutting  of  the  former.  Liggins  v.  Inge,  (7  Bingham,  682 ;  20 
Eng.  Com.  L.  Rep.  287,)  also  goes  directly  in  support  of  the  validity 
of  the  license.  It  was  an  action  on  the  case  for  wrongfully  continu- 
ing the  diversion  of  water  from  the  plaintiff's  mill,  and  the  facts  and 
question  to  be  decided,  as  briefly  stated  in  the  opinion  of  Tindall,  C. 
J.,  were  these  :  '  It  appeared  in  evidence  before  the  arbitrator,  that 
the  bank  of  the  river  which  had  been  cut  down  was  the  soil  of  the 
defendants  ;  and  that  the  same  had  been  cut  down  and  lowered,  and 
the  weir  erected,  and  the  water  thereby  diverted  by  them,  the  de- 
fendants, and  at  their  expense,  in  the  year  1822,  under  a  parol  license 
to  them  given  for  that  purpose  by  the  plaintiff's  father,  the  then 
owner  of  the  mill,  and  that  in  the  year  1827,  the  plaintiff's  father 
represented  to  the  defendants  that  the  lowering  and  cutting  down  the 
banks  was  injurious  to  him  in  the  enjoyment  of  his  mill,  and  had 
called  upon  them  to  restore  the  land  to  its  former  state  and  condition ; 
with  which  requisition  the  defendants  had  refused  to  comply.  The 
question  therefore  is,  whether  such  non-compliance,  and  the  keeping 
of  the  weir  in  the  same  state  after,  and  notwithstanding  the  counter- 
mand gf  the  license,  is  such  a  wrong  done  on  the  pai-t  of  the  defend- 
ants as  to  make  them  liable  in  this  action.  The  operation  and  effect 
of  the  license,  after  it  has  been  completely  executed  by  the  defend- 
ants is  sufficient,  without  holding  it  to  convey  any  interest  in  the 
water,  to  relieve  them  from  the  burden  of  restoring  to  its  former  state 
what  has  been  done  under  the  license,  although  such  license  is  coun- 
termanded, and  consequently  they  are  not  liable  as  wrongdoers  for 
persisting  in  such  refusal.'     The  views  of  the  Court  are  given  by 

VOL.  II.  23 


266  APPENDIX. 

the  Chief  Justice  at  considerable  length,  and  it  is  also  held  that  the, 
license,  after  it  was  executed,  was  not  countermandable.  That  was 
much  further  than  it  is  necessary  to  go  in  this  case.  That  case  is 
referred  to  with  approbation  in  Smith  v.  The  Birmingham  and  Staf- 
fordshire Gas  Light  Co.  (1  Adol.  &  El.  526,)  and  in  Wood  v.  Manley, 
(11  Adol.  &  Ell.  34.) 

"  The  case  of  Otis  v.  Hall,  (3  Johns.  450,)  decides  that  such  a  license 
is  valid,  and  also  that  setting  it  up  does  not  raise  a  question  of  title. 
The  action  was  a  special  action  on  the  case,  for  overflowing  the 
plaintiffs  land,  by  means  of  a  mill-dam  erected  by  the  defendant  on 
his  own  land.  The  defendant  proved  that  he  had  permission  to  erect 
the  dam,  and  overflow  the  plaintiff's  land  if  necessary  for  the  use  of 
the  mill.  On  a  motion  by  the  plaintiff  for  full  costs,  on  the  ground 
that  the  title  to  lands  came  in  question,  the  Court,  after  stating  the 
question,  and  expressing  the  opinion  that  the  freehold  or  title  did  not 
come  in  question,  say :  '  The  case  bears  no  analogy  to  that  of  Hea- 
ton  V.  Ferris,  (1  Johns.  146.)  There  was  no  claim  of  a  right  of 
entry  into  the  plaintiff's  land,  nor  of  any  direct  use  or  enjoyment  of 
it.  The  defendant  merely  sets  up  a  right  to  use  his  own  land  in  the 
manner  he  has  done,  by  erecting  the  dam  ;  that  any  consequential 
injury  to  the  plaintiff  was  waived  by  his  express  license  for  that  pur- 
pose. The  statute  only  applies  to  cases  where  a  claim  or  question  to 
the  direct  use  by  entry  on  another's  land  comes  in  controversy. 
This  and  many  other  cases  of  consequential  injui'ies,  as  for  nuisances 
erected  on  the  defendant's  own  land,  do  not  in  any  manner  bring  the 
title  in  question.  Nor  does  the  setting  up  a  lease  or  license  by  the 
plaintiff  raise  a  question  as  to  the  title,  or  give  any  right  or  interest 
in  the  plaintiff's  land.'  If  a  license  to  flow  land  with  water  is  valid, 
it  would  seem  that  a  license  justifying  the  alleged  wrongful  diversion 
of  water  from  it  must  be,  at  least,  until  revoked.  The  case  of  Chand- 
ler V.  Duane,  (10  Wend.  563,)  was  a  motion  for  costs  to  the  defend- 
ants, and  similar  to  that  last  cited.  Sutherland,  J.,  says  :  '  The 
action  and  the  ground  of  defence,  and  all  the  circumstances  in  the 
case,  were  precisely  the  same  as  in  this,'  and  the  same  principle  was 
applied.     (See  also  Clinton  v.  M'Kenzie,  5  Strobhart,  36.) 

"The  case  of  Powell  t\  Eust,  (8  Barb.  567.)  is  entirely  unlike  the 
present.  The  decision  in  that  case,  that  a  claim  of  title  arose  on  the 
pleadings,  was  placed  on  the  ground  that  Rust  claimed,  by  virtue  of 
an  agreement  with  the  plaintiff,  the  property  in,  and  the  right  to  enter 


LICENSE.  267 

with  teams  and  take  away  certain  growing  trees  and  shrubs,  which 
were  part  of  the  land.  Here,  no  transfer  to  the  defendant  of  a  right 
to  the  use  of  the  water  is  asserted,  but  only  a  permission  to  do  an  act 
by  which  the  diversion  of  the  water  was  effected.  If  the  license 
may  not  be  revoked,  it  is  not  because  it  conferred  any  interest  in  the 
use  of  the  water  upon  the  defendant,  but  because  it  operated  as  a 
yielding  u]>  and  relinquishment  of  the  water  diverted.  (Liggins  v. 
Inge,  above  cited.)  Mumford  v.  Whitney,  (15  "Wend.  380,)  is  the 
case  of  a  claim  by  the  defendant  to  a  permanent  interest  in  the  plain- 
tiff's land.  Davis  v.  Townsend,  (10  Barb.  333,)  contains  only  the 
same  doctrine.  For  the  foregoing  reasons,  I  am  of  opinion  that  no 
claim  of  title  to  real  property  arises  on  the  pleadings  in  this  case." 

Some  cases  have  been  cited,  illustrating  the  respective  rights  of 
the  parties  to  a  license,  in  case  of  the  construction  of  a  dam,  for 
the  purpose  of  creating  a  water  power.  In  a  late  case  it  has  been 
held,  that  a  parol  license,  that  the  plaintiff  or  his  grantor  may  build 
a  dam  on  the  land  of  another,  to  raise  a  reservoir  for  the  use  of  his 
mill,  gives  the  plaintiff  no  right  to  maintain  the  dam,  or  control  the 
water  raised  by  it.  Pitman  v.  Poor,  38  Maine,  237.  Tenney,  J., 
says,  (p.  241)  :  "  The  Court,  in  Munford  v.  Whitney,  15  Wend.  380, 
review  many  of  the  cases  upon  this  subject,  in  which  the  doctrine  of 
some  is  in  conflict  with  that  of  others,  and  it  is  said  by  Savage,  C.  J., 
who  delivered  the  opinion  of  the  Court,  '  I  shall  not  undertake  to 
reconcile  these  various  cases.  It  is  evident  the  subject  has  been 
understood  very  differently  by  different  Judges.  But  in  this  all  agree, 
that,  according  to  the  Statute  of  Frauds,  any  permanent  interest  in 
the  land  itself,  cannot  be  transferred,  except  by  writing.  Much  of 
the  discrepancy  may  have  arisen  from  the  different  ideas  attached  to 
the  word  license.  If  we  understand  it  as  Chancellor  Kent  defines  it, 
it  seems  to  me,  there  can  be  no  difficulty.'  '  If  A.  agrees  with  B. 
that  B.  may  build  a  dam  upon  the  land  of  A. — if  it  is  fo  be  perma- 
nent— such  an  agreement  is  not  technically  a  license.  The  object  of 
A.  is  to  grant,  and  of  B.  to  acquire  an  interest,  which  shall  be  per- 
manent ;  a  right  not  to  occupy  for  a  short  time,  but  as  long  as  there 
shall  be  employment  for  the  water  power  to  be  created.  Can  such 
an  interest,  such  a  right,  be  thus  created  .''  The  answer  to  this  ques- 
tion is  given  in  the  language  of  Mr.  Sugden,  '  It  appears  to  be  in  the 
very  teeth  of  the  statute.'" 

Action  for  diverting  upon  land  of  the  plaintiff  the  water  of  a  canal, 


268  APPENDIX. 

located  on  his  adjoining  land,  by  means  of  a  culvert  built  by  the 
defendants,  a  railroad  corporation,  on  the  land  last  named.  Held  no 
defence,  that  the  grantor  of  the  plaintift"  consented  by  parol  to  the 
building  of  the  culvert  and  the  consequent  diversion  of  the  water* 
verbally  requested  and  assisted  the  defendants  to  build  the  culvert, 
and  agreed  to  save  them  harmless  from  all  damage.  Foot  v.  New 
Haven,  &c.,  23  Conn.  214.  The  decision  proceeds  upon  the  ground, 
that,  if  such  license  is  in  reality  the  grant  of  an  easement  or  incor- 
poreal hereditament,  it  is  void  under  the  Statute  of  Frauds  ;  and,  if 
a  mere  authority,  was  revocable  by  the  plaintiff's  grantor  during  his 
ownership,  and,  if  it  did  not  terminate  by  the  transfer  to  the  plaintiff, 
was  revocable  by  the  latter.  It  was  further  held,  that  the  defendants 
could  not  set  up  a  charter,  empowering  them,  by  taking  certain  steps, 
to  acquire  the  right  of  so  diverting  the  water  of  the  canal ;  such 
steps  not  having  been  actually  taken. 

In  Jamieson  v.  Millemann,  3  Ducr,  255,  it  was  held,  that  the  main 
distinction  between  a  grant  and  license  to  enter  upon  lands  is,  that 
the  latter,  whether  made  by  parole  or  in  writing,  is,  in  all  cases, 
revocable  at  pleasure.  The  single  exception  is,  where  the  license  is 
annexed  as  an  incident  to  a  valid  grant,  and  its  exercise  necessary 
to  a  beneficial  enjoyment  of  the  grant.  Also,  that  a  parol  license 
which,  if  held  to  be  irrevocable,  would  operate  as  a  transfer  of  an 
estate  or  interest  in  land,  is  wholly  void,  except  as  a  justification  for 
acts  done  under  and  prior  to  its  revocation.  And  in  such  cases,  a 
tender  of  amends  to  the  party  who  has  incurred  expenses  in  acting 
under  the  license  is  not  a  condition  precedent  to  a  revocation  ;  but 
such  party  is  liable  for  all  damages  subsequent  to  the  revocation. 
Duer,  J.,  says  (p.  259)  :  "  Here  the  permission  to  the  defendant,  to 
enter  upon  the  lot  of  the  plaintiff,  was  not  given  for  a  temporary 
purpose,  but  for  that  of  erecting  a  permanent  building,  which  he  wt\,s  " 
to  use  and  occupy  during  the  residue  of  the  plaintiff's  term  ;  and  it 
is  plain  that,  by  holding  that  this  pex'mission  could  not  be  revoked, 
we  should  give  to  a  mere  and  verbal  authority  the  effect  and  ojDcration 
of  a  valid  grant,  and  would  in  effect  decide  that  an  interest  in  lands 
may  be  transferred  by  parole."  The  learned  Judge  proceeds  to  re- 
mark, that  the  only  authorities  for  such  a  doctrine  are  certain  cases 
in  Pennsylvania,  and  the  case  of  Winter  v.  Broderick,  8  E.  308  ;  and 
that  in  the  latter  case  the  license  did  not  ti'ansfer  an  interest  in  land, 
but  merely  suspended  the  enjoyment  of  an  easement.     The  doctrine 


LICENSE.  269 

of  the  case  is,  that  where  full  effect  may  be  given  to  a  license  by  acts 
done  on  the  lands  of  the  licensee,  although  by  these  acts  the  enjoy- 
ment of  an  easement  attached  to  the  land  of  the  licensor  may  be 
defeated,  the  usual  objections  to  considering  a  license  irrevocable  do 
not  apply,  and  consequently  that,  in  such  cases,  if  the  license  has 
been  fully  executed,  it  cannot  be  revoked.  (Moore  v.  Rawson,  3  B." 
&  C.  332 ;  Liggins  v.  Inge,  7  Bing.  682.)  But  that  this  doctrine  is 
wholly  inapplicable  when  the  acts  which  the  license  warrants  are 
to  be  done  by  the  licensee  upon  the  lands  of  the  licensor,  and  the 
effect  of  holding  the  license  to  be  irrevocable,  would  be  to  give  to 
the  licensee  a  permanent  interest  or  easement  in  these  lands,  has 
been  determined  in  numerous  cases  in  the  English  Courts,  in  those 
of  our  sister  States,  and  emphatically  in  our  own.  (Fentiman  v. 
Smith,  4  East,  109 ;  The  King  v.  Inhabitants  of  Horndon,  4  M.  & 
Gil.  562  ;  Hewlins  v.  Shipman,  5  B.  &  C.  221  ;  Wood  v.  Leadbitter, 
13  M.  &  W.  838  ;  Bryan  v.  Wiiistler,  8  B.  &  C.  288  ;  Cocker  v. 
Cooper,  1  Cr.  Mees.  &  R.  418  ;  Bird  v.  Higginson,  4  Nev.  &  Man. 
505  ;  Cook  V.  Stearns,  11  Mass.  536;  Hayes  v.  Richardson,  1  Gnl 
&  John.  366  ;  Price  v.  Case,  10  Conn.  375  ;  ex  parte  Coburn,  1  Cow. 
568;  Mumford  t'.  Whitney,   15  Wend.  380  ;  Miller  v.  Auburn,  &c. 

6  Hill,  61  ;  Iloughtailing  v.  Houghtailing,  5  Barb.  379 ;  Brown  v. 
Woodworth,  Id.  551.)    It  is  added,  that  the  case  of  Taylor  y.  Waters, 

7  Taunt.  374,  holding  a  contrary  doctrine,  has  been  conclusively 
overruled  ;  and  the  decisions  in  Pennsylvania  proceed  upon  a  doc- 
trine peculiar  to  tliat  State,  where  there  is  no  Court  having  power  to 
administer  what  is  usually  termed  equitable  relief.  Upon  the  point 
of  making  amends  before  revocation,  it  is  said  :  "  I  am  not  aware  that 
the  assertion  rests  upon  any  other  authority  than  the  dictum  of  Lord 
EUenborough  in  Winton  v.  Brockwell,  and  this,  we  have  the  authority 
of  the  same  learned  Judge  for  saying,  must  be  understood  in  a  strict 
reference  to  the  particular  circumstances  of  the  case  in  which  it  was 
uttered ;  that  is,  as  applicable  only  where  the  license  has  been  fully 
executed,  and  involves  no  more  than  the  waiver  or  relinquishment  of 
an  easement  or  other  privilege.  In  the  case  of  The  King  v.  The 
Inhabitants,  &c.,  it  was  held  by  the  Court  of  King's  Bench,  that  a 
license  affecting  ill  use  or  enjoyment  of  the  realty,  although  carried 
into  execution,  is  revocable  at  pleasure,  though  it  deprive  the  licensee 
of  the  fruits  of  his  money  or  labor  ;  and  this  principle  is  distinctly 
affirmed  in  the  subsequent  cases  of  Hewlins  v.  Shipman,  and  Wood 

23* 


270  APPENDIX. 

V.  Leadbitter.  When  a  license  is  not  simply  gratuitous,  but  is  found- 
ed on  a  valuable  consideration,  cases  may,  doubtless,  arise,  in  which 
the  licensee  would  have  a  just  claim  to  be  reimbursed  for  his  ex- 
penses, and  compensated  for  his  labor ;  but  even  in  such  cases,  if  the 
license  affects  the  use  or  enjoyment  of  the  realty  by  the  licensor,  by 
"creating  an  interest  inconsistent  with  his  own,  I  appi'ehend  it  has 
never  been  decided  that  the  payment  or  a  tender  of  full  amends  is  a 
condition  precedent  to  a  revocation  of  tlie  license." 


Vol.  I.  p.  158.     Part-performance. 

The  following  case  illustrates  the  question  of  title  growing  out  of 
the  contract  of  sale  and  purchase,  and  the  effect  of  part-performance 
upon  such  title. 

Action  against  a  town  under  the  Revised  Statutes  (of  Massachu- 
setts) c.  18,  s.  7,  for  the  destruction  of  a  house  to  prevent  the  spread 
of  a  fire  ;  brought  by  one  who  had  no  other  title  than  a  parol  con- 
tract for  a  deed  when  he  should  have  paid  the  purchase-money.  The 
purchase-money  not  having  been  paid,  held,  the  action  did  not  lie, 
the  plaintiff  not  being  an  owner  within  the  terms  of  the  act.  Bigelow, 
J.,  says :  "  He  then  had  neither  a  legal  or  equitable  title  to  the 
premises.  He  had  not  such  a  right  as  would  enable  him  to  claim 
and  enfoi'ce  a  conveyance  from  the  owner  of  the  legal  estate.  Assum- 
ing the  ground  taken  by  the  plaintiff  to  be  correct,  upon  which  we 
express  no  opinion,  that  a  full  and  clear  equitable  title  would  come 
within  the  provisions  of  the  statute,  so  that  a  cestui  que  trust  could 
be  considered  an  owner,  and  entitled  to  claim  compensation,  it  is  clear 
that  the  plaintiff  did  not  hold  even  such  a  title  to  the  estate  at  the 
time  of  the  fire."     Buggies  v.  Nantucket,  11  Cush.  433,  436. 

In  Pennsylvania,  in  the  late  case  of  Poorman  v,  Kilgore,  26 
Penn.  365,  it  is  held,  that  in  parol  sales  of  land,  it  is  the  duty  of 
the  Courts,  in  the  application  of  the  practice  and  principles  of  equity, 
to  reject  all  the  evidence  of  a  verbal  contra^  if,  being  taken 
together,  it  fails  to  make  out  such  a  case  as  is  entitled  to  stand  as 
an  exception  to  the  statute.  The  use  and  possession  of  the  real 
estate  of  a  father  by  a  child,  is  to  be  interpreted  by  the  law  of 


PART-PERFORMANCE.  271 

evidence  that  arises  from  the  family  rehition,  and  as  between  such 
persons,  to  receive  a  different  construction  from  similar  acts  between 
strangers.  As  between  such  persons,  the  evidence  of  a  gift  or  sale 
must  be  direct,  positive,  express,  and  unambiguous,  and  it||terms 
must  be  clearly  defined,  and  all  the  acts  necessary  to  its  validity 
must  have  special  reference  to  it  and  nothing  else.  Thus  the  plaintiff 
agreed  with  his  son-in-law,  the  defendant,  that  the  latter  should  go 
into  possession  of  a  farm  of  the  plaintiff,  and  give  him  one  third  of 
the  grain  raised  thereon,  and  at  the  death  of  the  plaintiff  should  have 
the  farm.  Under  this  agreement  the  defendant  took  possession  and 
made  permanent  improvements.  In  this  action  of  ejectment,  held, 
the  sale  was  within  the  statute,  the  law  presuming  that  the  plaintiff 
was  putting  into  experimental  operation  for  the  benefit  of  his  child, 
an  arrangement  which  he  expected  to  confirm  at  his  death.  Lowrie, 
J.,  says  (p.  371)  :  "A  delivery  of  possession  in  pursuance  of  a  verbal 
contract  is  now  regarded  as  essential  to  the  enforcement  of  it ;  but 
there  is  a  plain  reason  why  it  ought  not  to  be  treated  as  securing 
that  result,  or  as  having  as  much  force  now  as  it  once  had.  When 
livery  of  seizin  was  at  common  law  a  sufficient  form  of  transferring 
title  to  land,  it  was  an  open  and  notorious  act,  performed  in  the  pres- 
ence of  the  neighbors,  accompanied  by  the  symbolical  delivery  of 
the  turf  or  twig,  and  the  declaration  of  the  quantity  of  the  estate 
granted.  But  even  this  solemn  investiture  was  so  open  to  frauds 
and  perjuries  that  it  called  for  the  correction  of  the  statute  requii'ing 
the  contract  to  be  put  into  writing.  Now,  that  common-law  form  has 
worn  out,  and  delivery  takes  place  without  any  form  at  all,  almost 
always  by  a  mere  entry  on  a  permission,  express  or  implied ;  and 
thus  the  publicity  and  form  of  the  delivery  no  longer  avails  as  a 
check  upon  the  mere  invention  of  the  sale." 

The  learned  Judge  further  remarks  :  "  In  our  first  endeavor  to 
administer  these  equitable  exceptions  through  the  instrumentality  of 
a  common-law  trial,  we  very  often  failed  by  reason  of  our  want  of 
skill  in  applying  such  remedies  in  a  form  so  unusual.  This  experi- 
ence has  forced  upon  the  Courts  a  more  careful  study  and  appli- 
cation of  equity  practice,  and  a  consequent  rejection  of  all  the  evi- 
dence of  a  verbal  contract,  if,  being  taken  as  true,  it  does  not  make 
out  such  a  case  as  is  entitled  to  stand  as  an  exception  to  the  statute  ; 
9  W.  &  Ser.  49  ;  9  Watts,  109  ;  1  Harris,  21  ;  7  Id.  4G1,  471.  This 
improvement  in  the  practice  tends  to  the  security  of  written  titles, 


272  APPENDIX. 

even  if  the  exceptions  to  the  principle  of  the  statute  remain.  In  the 
case  of  Brawdy  v.  Brawtly,  7  Barr,  157,  the  Judge  who  tried  the 
cause  heard  the  evidence  of  the  verbal  contract,  and  then  withdrew 
it  all  Aom  the  jury  as  being  entirely  insuflicient  to  make  out  the 
case,  and  this  practice  was  expressly  approved. 

"  We  may  notice  still  another  principle  of  law  that  is  applied  very 
beneficially  to  restrain  the  exceptions  of  the  statute,  and  which  is  of 
especial  importance  in  this  case,  though  its  application  is  not  peculiar 
to  cases  under  this  statute.  We  allude  to  the  law  of  evidence  that 
grows  out  of  the  family  relation.  It  is  so  usual  and  natural  for 
children  to  work  for  their  parents,  even  after  they  arrive  at  age,  that 
the  law  implies  no  contract  in  such  cases.  And  it  is  so  natural  for 
parents  to  help  their  children  by  giving  them  the  use  of  a  farm  .or 
house,  and  then  to  call  it  theirs,  that  no  gift  or  sale  of  the  property 
can  be  inferred  from  such  circumstances.  The  very  nature  of  the 
relation,  therefore,  requires  the  contracts  between  parents  and  chil- 
dren to  be  proved  by  a  kind  of  evidence  that  is  very  different  from. 
that  which  may  be  sufficient  between  sti'angers.  2  Penn.  Rep.  365; 
8  Barr,  213  ;  9  Id.  262  ;  2  Harris,  201  ;  7  Id.  251-366  ;  1  Casey, 
308;  2  Jones,  175.  The  importance  of  this  rule  is  very  apparent; 
for  it  requii-es  but  a  glance  over  the  cases  of  this  class  to  discover 
how  sad  has  been  the  experience  of  the  Courts  in  family  disputes, 
growing  out  of  the  exceptions  which  have  been  allowed  to  this 
statute  ;  and  how  many  and  how  distressing  must  have  been  the 
ruptures  of  the  closest  ties  of  kindred  that  have  been  produced  and 
perpetuated  by  the  encouragement  thus  given  to  try  the  experiment 
of  extracting  legal  obligations  out  of  acts  of  parental  kindness. 
The  delivery  of  possession  is  perfectly  accounted  for  by  the  relation 
of  the  parties,  and  by  the  annual  delivery  of  a  share  of  the  produce, 
as  a  tenancy  from  year  to  year,  which  is  allowed  by  the  statute.  If 
a  contract  to  farm  land  on  the  shares,  and  a  delivery  of  possession 
under  it,  can  be  supplemented  by  another  for  an  absolute  grant,  then 
certainly,  as  between  parent  and  child,  delivery  of  possession  be- 
comes a  worthless  protection  against  violations  of  the  statute.  Both 
the  terms  of  this  arrangement  and  the  possession  under  it  may  readily 
be  accounted  for  as  founded  on  other  intentions  than  that  of  a  gift  of 
the  land,  and  tlierefore  the  law  forbids  us  to  infer  that  purpose.  3 
Ser.  &  R.  546  ;  3  Penn.  R.  365 ;  9  Watts,  42,  109  ;  7  Harris,  469 ; 
1  Johns.  Ch.  149.     Some  reliance  is  placed  upon  the  improvements 


PART-PERFORMANCE.  273 

made  by  the  defendant,  but,  having  been  made  without  an  actual  gift, 
and  only  on  the  expectation  or  promise  of  a  gift,  they  do  not  avert 
the  rule  of  the  statute.  1  Barr,  379  ;  3  Watts,  108,  255."  See 
also  Cox  V.  Cox,  26  Penn.  375. 

In  the  late  case  of  Hunt  v.  Turner,  9  Tex.  389,  it  is  said,  "  a  con- 
tract may  be  void  under  the  Statute  of  Frauds  ;  yet,  if  the  conduct 
of  the  party  setting  up  the  invalidity  of  the  contract,  has  been  such 
as  to  raise  an  equity  outside  of,  and  independent  of  the  contract,  and 
nothing  else  will  be  adequate  satisfaction  of  such  equity,  it  will  sustain 
the  sale,  though  not  valid  under  the  Statute  of  Frauds.  Dugan's 
Heirs  V.  Colwell's  Heirs,  (8  Tex.  E.)  Again,  a  party  to  an  illegal 
contract  will  not  be  permitted  to  avail  himself  of  its  illegality,  until 
he  restores  to  the  other  party  all  that  has  been  received  from  him 
on  such  illegal  contract.  So  long  as  he  continues  to  hold  or  to  enjoy 
the  advantages  of  the  contract,  he  shall  not  be  allowed  to  set  up  to 
his  advantage  its  nullity. 

Robinson  and  his  heirs  were  permitted  to  take  possession  of  the 
land,  and  to  make  large  improvements,  and  not  a  word  said  about 
enforcing  the  legal  claim  to  the  land  by  Hunt  nor  his  heirs,  until 
about  nine  years  from  the  contract,  and  eight  after  the  death  of  Hunt. 
Hunt  went  into  possession  of  the  land  conveyed  to  him  by  Robinson 
immediately,  and  died  upon  it  about  a  year  after.  His  heirs  con- 
tinued to  live  on  it  as  their  own,  until  1850,  and  then  sold  it,  and  in 
their  deed  to  the  purchaser,  described  it  as  the  same  land  deeded  to 
Hunt  by  Robinson  in  1832.  Will  not  these  facts,  under  the  prin- 
ciples laid  down,  raise  an  equity  that  will  override  the  legal  title  to 
the  plaintifis  to  the  land  sued  for?  We  have  no  hesitation  in  saying 
that  it  does." 

In  Ottenhouse  v.  Burleson,  11  Tex.  87,  it  was  held,  that  where  the 
purchase-money  has  been  paid,  and  the  purchaser  has  entered  and 
made  valuable  improvements,  specific  performance  of  a  verbal  con- 
tract will  be  decreed  in  favor  of  the  vendee  ;  and  also  that  such  a 
case  falls  within  the  operation  of  a  statute  giving  jurisdiction  to  the 
Court  to  decree  specific  performance  of  the  written  contract  of  a 
decedent  for  the  sale  of  land. 


\        ___    


274  APPENDIX. 


Vol.  T.  p.  174.      Construction  of  Contracts. — Parol  Evidence. 

It  has  been  recently  decided  in  Massachusetts,  that  the  time  of 
performance  of  a  written  contract  for  the  sale  of  real  property  may 
be  enlarged  by  a  new  parol  agreement.  Fletcher,  J.,  says  :  "  As  a 
general  rule,  in  case  of  a  simple  contract  in  writing,  oral  evidence  is 
admissible  to  show  a  subsequent  oral  agreement  to  enlarge  the  time 
of  performance,  or  to  vary  any  other  terms  of  the  contract,  or  to 
discharge  it  altogether.  AVhether  or  not  this  general  principle  is 
applicable  at  all,  and  if  so,  to  what  extent,  to  written  contracts  within 
the  Statute  of  Frauds,  is  a  question  which  has  been  frequently  and 
largely  discussed ;  and  the  adjudged  cases  upon  the  subject,  both 
English  and  American,  are  numerous  and  very  conflicting.  In  the 
case  of  Cummings  v.  Arnold,  3  Met.  486,  this  subject  was  very  fully 
considered,  and  the  cases  examined  by  this  Court.  In  that  case  the 
Court  say  :  '  The  principal  design  of  the  Statute  of  Frauds  was,  that 
parties  should  not  have  imposed  on  them  burdensome  contracts,  which 
they  never  made,  and  be  fixed  with  goods  which  they  never  contem- 
plated to  purchase.  The  statute,  therefore,  requires  a  memorandum 
of  the  bargain  to  be  in  writing,  that  it  may  be  made  certain  ;  but  it 
does  not  undertake  to  regulate  the  performance.  It  does  not  say  that 
such  a  contract  shall  not  be  vai'ied  by  a  subsequent  oral  agreement 
for  a  substituted  performance.  This  is  left  to  be  decided  by  the  rules 
and  principles  of  law,  in  relation  to  the  admission  of  parol  evidence 
to  vary  the  terms  of  written  contracts.  We  have  no  doubt,  therefore, 
that  accord  and  satisfaction,  by  a  substituted  performance,  would  be  a 
good  defence  in  this  action.'  The  Court  adopted  the  doctrine  of  the 
case  of  Cuff  v.  Penn,  1  M.  &  S.  21.  That  was  an  action  of  assumpsit 
against  the  defendant,  for  not  accepting  a  quantity  of  bacon  according 
to  his  written  contract,  which  was  within  the  Statute  of  Frauds. 
The  defence  to  the  action  was,  that  the  bacon  was  not  delivered  within 
the  time  specified  in  the  written  contract ;  to  which  the  plaintiff  re- 
plied, and  proved  that  the  time  of  delivery  expressed  in  the  written 
contract,  was  extended  by  the  parties  by  a  subsequent  oral  agree- 
ment, and  that  the  plaintiff  tendered  the  bacon  to  the  defendant 
within  the  substituted  time.  The  Court  held  that  it  vpas  competent 
for  the  plaintiff  to  show  that  the  parties,  by  a  subsequent  parol  agree- 
ment, substituted  a  time  for  the  delivery  of  the  bacon  different  from 


CONSTRUCTION. — PAROL   EVIDENCE.  275 

that  mentioned  in  the  written  contract,  and  that  he  delivered  or 
offered  to  deliver  it,  within  the  substituted  time,  and  the  plaintiff  had 
a  verdict  and  judgment.  The  present  case  strongly  illustrates  the 
propriety  and  necessity  of  the  rule  thus  established.  From  the 
evidence  in  the  case,  it  must  be  assumed  that  the  plaintiff  would  have 
paid  the  money  within  the  time  limited  in  the  written  contract,  if  the 
defendant  had  not  orally  agreed  to  substitute  another  time,  and  the 
plaintiff,  in  fact,  tendered  the  money  within  the  substituted  time. 
The  defendant,  therefore,  by  his  own  act,  by  orally  agreeing  to  re- 
ceive the  payment  at  another  substituted  time,  prevented  the  plaintiff 
from  making  the  payment  within  the  time  limited  in  the  original 
contract.  Though  the  plaintiff  was  ready,  and  offered  to  make  the 
payment  within  the  substituted  time,  yet  the  defendant,  notwithstand- 
ing his  oral  agreement,  refused  to  receive  the  money,  and  now  sets 
up  the  non-performance  by  the  plaintiff  within  the  time  originally 
linnted,  which  the  defendant  himself  has  by  his  own  act  occasioned, 
as  a  defence  to  the  plaintiff's  claim  in  this  action.  This  defence  can- 
not be  maintained."     Stearns  v.  Hall,  9  Cush.  31,  34. 

In  the  case  of  Hussey  v.  Roquemore,  27  Ala.  287,  the  following 
remarks  were  made  by  the  Court :  "  The  evidence  proved  that  this 
note,  which  was  for  $300,  was  originally  given  for  land  bought  by 
the  defendant  from  the  plaintiff;  that  the  latter,  discovering  he  did 
not  own  a  portion  of  the  land  sold,  agreed  with  the  vendee,  on  receiv- 
ing from  him  $225  on  the  note,  that  he  should  be  discharged  from 
the  payment  of  the  balance,  unless  he  executed  to  him  a  valid  deed 
for  such  portion  within  a  short  time  thereafter ;  that  no  such  deed 
was  executed  for  nearly  two  years,  and  that  thereupon  the  defendant 
abandoned  the  land  to  which  the  agreement  referred. 

"  If  by  the  terms  of  the  original  contract,  it  had  been  provided 
that  the  defendant  should  not  pay  a  certain  amount  of  the  purchase- 
money,  until  the  vendor  executed  to  him  a  valid  title  for  the  land  in 
question,  it  would  then  fall  directly  within  the  principle  of  Wliitehurst 
V.  Boyd,  8  Ala.  375,  and  Phillips  v.  Longstreth,  14  Ala.  337.  The 
general  rule  is,  that  verbal  evidence  is  not  admissible  for  the  purpose 
of  contradicting  or  altering  a  written  instrument ;  but  this  rule  does 
not  exclude  such  evidence,  when  it  is  adduced  to  prove  that  such 
instrument  is  totally  discharged.  If  the  defendant  had  paid  the 
whole  of  the  purchase-money,  and  taken  possession  under  the  con- 
tract, a  Court  of  Equity  would  have  enforced  it,  by  decreeing  a  con- 


276  APPENDIX. 

veyance ;  if  this  could  not  have  been  done,  on  account  of  a  want  of 
title  in  the  vendor,  he  would  have  been  compelled  to  refund,  Tliis 
being  the  law,  it  would  be  singular  if  the  parties  could  not,  with  the 
view  of  avoiding  any  future  difficulty  which  might  result  from  the 
faihire  of  the  vendor  to  obtain  titles,  extend  the  time  of  payment  of 
the  note,  and  provide  that  it  should  not  be  enforced  if  valid  titles 
were  not  made  within  a  certain  time.  We  cannot  doubt  as  to  the 
validity  of  such  an  arrangement.  So  long  as  the  vendee  retained 
possession  under  the  contract,  it  might  operate  on  his  part  as  a  waiver, 
or  extension  of  the  time ;  but  he  was  not  bound  to  wait  always,  since, 
by  doing  so,  he  was  rendering  himself  liable  to  the  actual  owner,  and 
might  therefore  abandon  the  possession  in  a  reasonable  time  ;  and  if 
he  did  so,  the  note  could  not  be  enforced  against  him.  The  fact  that 
the  defendant  retained  the  possession  of  the  other  lands,  does  not 
affect  the  principle,  as  the  subsequent  agreement  had  no  relation  to 
them.  It  was  the  same  as  if  no  other  land  had  been  purchased  tWan 
the  piece,  the  failure  to  make  titles  to  which  it  was  agreed  should 
discharge  the  note.  It  seems  to  have  been  supposed  that  the  agree- 
ment as  to  the  discharge  of  the  note  was  in  the  natui'e  of  a  penalty ; 
and  that,  conceding  its  validity,  the  only  benefit  the  defendant  could 
obtain  from  it  was,  to  scale  the  note  to  the  amount  of  the  actual  value 
of  the  land  to  which  titles  wei'e  not  made,  and  the  fence  which  was 
upon  it.  But  this  position  is  not  tenable.  We  doubt  whether  the 
doctrine  can  in  any  sense  apply  to  an  agreement  of  this  character  ; 
but,  if  it  does,  the  plaintiff  can  derive  no  advantage  from  it,  as  the 
damages  resulting  from  the  failure  to  make  a  good  title  were  uncer- 
tain. There  was  but  a  single  act  to  be  done  ;  and  the  disproportion 
between  the  value  of  the  land  to  be  conveyed  and  the  amount  due 
upon  the  note,  if  there  was  any,  was  so  slight,  that  it  could  not 
authorize  the  Court  to  declare  it  a  penalty.  Watts  v.  Sheppard,  2 
Ala.  425." 


Vol.  I.  p.  180.     Time  of  Performing  Contracts. 

We  have  already  considered  at  some  length  the  somewhat  doubtful 
question,  how  far  time  is  an  essential  part  of  the  contract.     In  the  late 


TIME   OF  PERFORMING   CONTRACTS.  277 

case  of  Porter  v.  Dougherty,  25  Penn.  405,  Lowrie,  J.,  saya 
(p.  406):  "One  who  desires  to  enforce  specific  performance  of  a 
parol  contract  for  the  purchase  of  land,  must  present  his  claim  with- 
out unnecessary  delay,  and  while  affairs  remain  in  such  a  condition 
that  performance  can  be  enforced  without  injury  to  others,  and 
especially  he  muist  not  himself  have  done  any  act  that  is  incompatible 
with  his  claim  for  performance,  or  that  makes  such  a  claim  inequitable. 
Here  eleven  years  elapsed  between  the  breach  of  the  alleged  con- 
tract by  the  plaintiff's  grandfather,  when  he  claimed  and  got  back 
the  land  from  the  plaintiff's  mother,  and  the  bringing  of  this  suit. 
In  the  mean  time  the  grandfather  made  considerable  improvements 
on  the  land,  and  then  died ;  the  devisee  of  this  portion  is  in  posses- 
sion of  it  as  part  of  her  share  of  her  father's  estate,  and  must  lose  it 
if  this  claim  succeeds  ;  and  the  plaintiff's  mother  was  bequeathed 
$100,  and  it  was  paid  to  her.  These  circumstances  very  obviously 
set  aside  the  equity  on  which  the  plaintiff  relies,  if  it  ever  existed." 

Contract  of  sale  and  pui'chase  between  the  plaintiff  and  defendant ; 
the  latter  to  have  occupation  and  possession,  so  long  as  he  should 
fulfil  the  contract ;  but,  in  case  of  his  default,  the  agreement  to  be 
void,  and  the  plaintiff  to  have  the  right  of  immediate  reentry,  and  to 
be  forever  discharged  from  the  agreement.  It  was  further  provided, 
that,  on  payment  of  $745  in  five  years,  with  annual  interest,  the  de- 
fendant should  be  entitled  to  a  deed.  On  the  day  before  the  time  of 
payment  expii-ed,  the  defendant  tendered  the  amount  and  requested 
a  deed.  The  plaintiff  refused  to  receive  the  money  and  give  the 
deed  ;  upon  the  ground  that  he  had  not  enjoyed  the  privileges  in  the 
house  to  which  he  was  entitled,  and  saying  that  he  would  give  no- 
deed  till  he  and  the  defendant  had  settled.  They  then  agreed  to 
leave  the  question  of  damages  to  A.  and  B.,  and  the  plaintiff  to  see 
B.  and  ascertain  when  he  could  attend  to  the  business.  An  indorse- 
ment was  then  made  upon  the  contract,  not  under  seal,  but  signed  by 
the  plaintiff,  extending  the  time  of  payment  to  the  25th  of  April. 
On  or  about  that  day,  the  money  was  again  offered  and  a  deed  re- 
quested. The  plaintiff  refused  as  before,  saying  he  had  been  unable 
to  get  B.  to  attend  to  it.  The  time  was  then  extended  by  a  similar 
indorsement  to  the  loth  of  May.  A  few  days  before  that  time,  the 
defendant  again  tendered  the  money,  if  the  plaintiff  would  give  a 
deed,  but  he  refused.     Held,  the  defendant  was  entitled  to  the  deed  ; 

VOL.  II.  24 


278  APPENDIX. 

that  ho  had  been  prevented  from  fulfilling  the  contract  at  the  tirao 
appointed  by  the  plaintiff  himself,  who  could  not  take  advantage  of 
his  own  wrong  by  making  this  objection.  Also,  that  parol  evidence 
was.  admissible  of  the  plaintiff's  having  agreed,  at  tluj  time  of  the  last 
tender  and  at  other  times,  not  to  take  advantage  of  the  expiration  of 
the  contract,  saying  that  a  few  days  would  make  no  difference  ;  and 
that  the  money  and  a  deed,  ready  for  execution  by  him,  were  tendered 
on  the  18th  of  May.  Stone  v.  Sprague,  20  Barb.  509.  The  Court 
6ay  (p.  515) :  "  It  has  repeatedly  been  decided  that  the  time  of  per- 
formmg  a  written  contract  under  seal  may  be  enlarged  by  parol.  In 
the  case  of  The  Mayor,  &c.,  of  New  York  v.  Butler,  (1  Barb,  S.  C. 
Rep.  325,  337,)  the  Court  remarked  that  such  an  extension  is  in 
effect  a  tvaiver  of  a  strict  performance  of  the  conditions  of  the  con- 
tract ;  that  no  party  can  insist  upon  a  condition  precedent,  when  its 
non-performance  has  been  caused  by  himself ;  that  there  may  be  an 
effectual  waiver  by  parol  of  a  condition  specified  in  a  written  or  even 
a  sealed  contract.  'It  is  a  sound  principle,'  says  Ch.  J.  Thompson, 
in  Fleming  v.  Gilbert,  (3  Johns,  528,)  '  tltat  he  who  prevents  a  thing 
being  done,  shall  not  avail  himself  of  the  non-performance  he  has 
occasioned,'  The  case  of  Wiswall  v.  McGown,  (2  Barb.  S.  C.  Rep. 
270,)  relied  upon  by  the  plaintiff's  counsel,  does  not  militate  against 
this  doctrine.  The  Court  say,  in  that  case,  the  Courts  of  Equity  will 
interfere  in  favor  of  parties  who  were  not  ready  to  perform  their  agree- 
ments at  the  day,  where  a  party  has  failed,  through  some  unforeseen 
accident,  oi'  where  there  is  something  indicating  a  waiver  of  the  objec- 
tion, by  the  other  party.  But  the  case  of  Esmond  v.  Van  Beuscho- 
tgn,  (12  Barb.  3G6,)  adjudicated  in  this  district,  settles  this  question 
beyond  dispute,  and  decides  that  'it  is  competent  for  parties  on  the 
expiration  of  a  sealed  contract,  to  enlarge  the  time  for  performance 
by  parol.'" 

Bill  for  a  specific  performance  of  a  contract  between  the  plaintiffs 
and  defendant,  a  corporation,  for  the  sale  of  lands  by  the  former  to 
the  latter,  at  a  price  to  be  fixed  by  third  persons.  The  title  to  be 
perfect,  and  the  defendants  to  pay  within  ten  days  after  notice  of  the 
award.  Within  the  ten  days  the  vendors  tendered  a  deed,  and  no 
objection  was  made  to  the  title.  Soon  afterwards,  another  tender 
was  made  to  the  president  of  the  company.  He  made  no  objection 
to  the  time  or  to  any  incumbrance  on  the  property,  but  subsequently 


TIME   OF   PERFORMING    CONTRACTS.  279 

returned  the   deed,  the  company  retaining  the  property  and  doing 
nothing  to  abandon   the  sale.     At  the  time  of  tender,  there  was  a 
small  mortgage  upon  the  property  of  which  the  land  sold  was  a  part ; 
but  it  was  paid  within  eighteen  days  after  the  award  and  before  com- 
mencement of  suit.     Held,  the  defendants  waived  the  right  to  have  a 
perfect  title  within  the  ten  days  ;  that  the  parties  had  not  made  time 
of  the  essence  of  the  contract,  nor  was  the  making  of  a  perfect  title 
within  ten  days  a  condition  precedent  to  payment  of  the  price ;  and 
that  the  plaintiffs  were  entitled  to  a  decree,  if  they  could  make  a  good 
title  at  the  time  of  such  decree.     Viele  v.  The  Troy,  &c.,  21  Barb. 
381.     The  Court  say  (p.  390)  :  « It  was  as  much  the  duty  of  the 
defendants  to  pay  at  the  time  stipulated,  as  of  the  plaintiffs  to  convey. 
Neither  party  could  sue  at  law,  without  the  tender  of  a  deed  by  the 
one  party,  or  of  the  purchase-money  by  the  other.     The  provision 
for  a  conveyance  of  the  premises  free  from  incumbrances  was  not  an 
express  condition  precedent,  to  be  performed  within  the  period  of  ten 
days  after  notice  of  the  award,  else  the  contract  should  be  at  an  end, 
and  the  defendants  relieved  from  payment.     It  was  not  the  under- 
standing of  the  parties  that  after  the  amount  of  the  purchase-money 
had  been  ascertained,  and  notice  thereof  given,  within  ten  days  there- 
after the  plaintiffs  should  convey  a  perfect  title,  on  making  default, 
the  agreement  to  be  void.     Tlie  defendants  had  taken  possession  of 
the  premises  prior  to  the  award,  and  at  the  expiration  of  the  ten 
days  were  using,  and  still  continue  to  use  them.     There  is  nothing, 
therefore,  in  the  contract,  or  the  circumstances  surrounding  the  case 
showing  that  the  parties  had  made  time  any  part  of  the  essence  of 
the  contract.     The  defendants  could  lose  nothing  by  extending  the 
time  for  the  plaintiffs  to  convey  a  perfect  title  beyond  the  period  of 
ten  days,  as  they  wei-e  in  possession  and  use  of  the  premises,  and 
could  not  be  called  on  to  pay  the  award  unless  such  perfect  title  were 
made.     Within  the  ten  days  the  defendants  might  have  tendered  the 
purchase-money  and  demanded  a  deed,  and  in  default  of  the  plaintiffs, 
have  sued  at  law.     So,  also,  the  plaintiffs  having  tendered  a  deed  con- 
veying a  perfect  title,  in  default  of  payment  might  have  maintained 
their  action  at  law.     As  neither  party  has  put  the  other  in  default, 
and   the  time  is  elapsed,  it  is  probable  that  the  remedy  of  both,  at 
law,  for  a  breach  of  the  contract,  is  gone.     Either  party  may,  how- 
ever, go  into  equity  for  a  specific  performance,  and  make  the  offer 
incumbent  on  him  in  the  complaint ;  and  the  failure  to  make  the 


280  APPENDIX. 

toiulcr  before  the  commencement  of  the  suit  would  only  affect  the 
question  of  costs  (12  Vesey,  25).  In  general,  and  where  lapse  of 
time  is  not  essential  to  the  substance  of  the  contract,  it  is  not  neces- 
sary for  the  plaintiff  to  show  that  he  was  able  to  give  a  good  title  at 
the  time  of  making  the  agreement  to  sell,  or  even  at  the  commence- 
ment of  the  suit.  It  will  be  suflicient  if  he  can  give  a  perfect  title 
at  the  time  of  the  decree,  or  at  the  time  when  the  Master  makes  his 
report.  (5  Paige,  2 11.)  In  Seymour  v.  Delancey,  (3  Cowen,  445,) 
Suydam,  Senator,  said:  'In  the  case  of  a  specific  performance  it  is 
the  usual  course  of  the  Court  to  refer  the  inquiry  as  to  title  to  a 
Master.  The  Master  is  to  inquire  whether  the  party  can  make  a 
•  deed  according  to  his  contract.  If  he  can,  it  is  sufficient,  although 
he  was  not  in  a  situation  to  do  so  when  he  entered  into  the  contract, 
or  at  the  time  for  performance  ;  though  it  might  be  otherwise  where 
one  party  had  been  quickened  by  the  other,  or  where  time  is  of  the 
essence  of  the  contract.'" 

A  lease  provided  that  the  lessee  or  his  wife  might  purchase  the 
/premises  at  any  time  within  twelve  months  for  a  certain  sum,  and, 
upon  payment  thereof  and  all  arrears  of  rent,  that  the  lessor  would 
execute  a  conveyance.  The  lease  was  dated  January  1,  1849.  The 
lessee  occupied  and  paid  rent  during  his  life,  and  his  widow  paid  rent 
for  some  time  after.  She  subsequently  notified  the  lessor  that  she 
was  pi'epared  to  pay  the  money  and  desired  a  deed,  but  he  refused  to 
give  one,  on  the  ground  that  the  proper  time  had  gone  by,  and  after- 
wards ejected  her  by  a  suit.  She  then  brought  the  present  action, 
after  having  on  the  9th  of  October,  1852,  tendered  a  deed  for  execu- 
tion and  the  purchase-money.  Held,  that  time  was  not  of  the  essence 
of  the  contract.  D'Arras  v.  Keyser,  26  Penn.  249.  Woodward,  J., 
says  (p.  254)  :  "Mere  default  in  the  payment  of  money  at  a  stipu- 
lated time  admits,  in  general,  of  compensation,  and  hence  time  of 
payment  is  seldom  treated  as  of  the  essence  of  real  contracts.  Par- 
ties may  make  it  so  by  express  agreement,  but  there  is  nothing  on 
the  face  of  this  contract,  or  in  the  attending  circumstances,  to  indicate 
the  intention  of  these  parties  to  make  time  essential.  The  covenant 
for  title  was  part  and  parcel  of  the  lease,  and  the  term  fixed  was  one 
yeai",  yet  the  lessees  were  permitted  to  hold  over,  and  rent  was  re- 
ceived without  objection.  From  this  the  law  would  imply  a  renewal 
of  the  lease  from  year  to  year,  and  put  the  landlord  to  his  notice 


TITLE.  281 

when  he  meant  to  determine  it.  It  is  impossible  to  regard  the  year 
mentioned  in  the  instrument  as  any  more  of  the  essence  of  the  con- 
tract of  sale  than  it  was  of  the  lease." 

Ace.  Morgan  v.  Scott,  26  Penn.  53 — more  especially  where  no 
precise  time  is  fixed  in  the  contract,  where  there  was  no  delay  which 
the  plaintiff  could  avoid,  and  the  defendant  acquiesced  in  what  there 
was,  and  partially  caused  it  himself. 

As  to  the  construction  of  a  contract  in  reference  to  time  ;  where 
an  agreement  was  made  to  make  a  title  within  "  a  short  time,"  it  was 
held  not  sufficient  to  tender  a  deed  nearly  two  years  afterwards,  and 
after  the  vendee  had  abandoned  the  land.  Hussey  v.  Roquemore, 
27  Ala.  281. 


Vol.  I.  p.  208  ;  Vol.  11.  pp.  1-96.     Title. 

In  reference  to  the  obligation  of  a  vendor  to  give  a  deed  of  the 
land  before  claimmg  the  purchase-money,  it  has  been  held  that  a 
promise  "  to  make  a  valid  deed  "  is  not  fulfilled  by  offering  the  deed 
of  a  third  person.  Hussey  v.  Roquemore,  27  Ala.  281.  It  is  said 
(p.  289)  :  "  The  defendant  was  not  bound  to  accept  a  deed  from  any 
other  person  than  the  plaintiff.  If  the  title  was  in  the  party  who 
made  the  tender,  it  might,  it  is  true,  have  accomplished  the  object  of 
the  contract,  which  could  only  have  been  the  transfer  of  a  valid  title ; 
but  it  might  have  involved  the  trouble  and  expense  of  an  inquiry  to 
ascertain  whether  such  title  was  good,  and  this  inquiry  the  defendant 
was  under  no  obligation  to  make." 

In  the  case  of  Siter's  Appeal,  (26  Penn.  181,)  the  Court  remark  as 
follows,  upon  the  effect  of  a  party's  disahUng  himself  to  fulfil  the 
contract:  "It  is  true,  as  a  general  principle  in  equity,  that  Avhere  the 
vendor  of  land  is  unable  to  comply  strictly  with  his  contract,  and  is 
therefore  without  the  power  to  require  the  vendee  to  comply  by  pro- 
ceedings for  specific  performance,  equity  will  not  lend  her  aid  to  the 
vendee  in  his  effort  to  have  a  specific  performance  against  the  vendor ; 
the  remedy  must  be  mutual.  Where,  however,  the  want  of  ability 
24* 


282  APPENDIX. 

to  comply  on  the  part  of  the  vendee,  and  therefore  want  of  mutuality 
in  tlie  remedy  by  specific  performance,  arises  from  the  default  of  the 
vendor,  he  will  not  be  allowed  to  take  advantage  oi"  those  circura- 
Btances ;  to  permit  him  to  do  so  would  be  to  give  him  the  benefit  of 
bis  own  wrong." 

Contract  to  sell  land  for  a  projected  railway.  The  vendor  was 
described  as  having  only  a  life  estate  in  a  portion  of  the  land,  and  the 
projectors  of  the  railway  undertook  to  procure  for  him  from  Parlia- 
ment the  power  to  make  a  good  title,  but  by  their  own  default  failed 
to  do  so,  and  the  title  thereby  failed  to  be  perfected.  Held,  they 
were  liable  to  a  bill  for  specific  performance.  Eastern,  &c.  v.  Ilawkes, 
35  Eng.  L.  «&  Eq.  8.  Lord  Cran worth  says :  "  Such  powers  were  in 
fact  obtained.  The  plaintiff  repeatedly  offered  to  do  all  that  was 
requisite,  in  order  to  enable  the  company  to  profit  by  the  use  of  these 
powers.  If  the  appellants  have  wilfully  let  the  opportunity  pass, 
they  cannot  set  up  their  neglect  as  a  bar  to  the  plaintiff's  demand. 
They  are  estopped  as  between  themselves  and  the  plaintiff  from  dis- 
puting his  title,  and  if  after  the  death  of  the  plaintiff  any  question 
should  be  raised  by  the  remainder-man,  that  question  must  be  then 
discussed  and  disposed  of.  It  is  the  fault  of  the  appellants  that  the 
title  was  not  perfected,  and  they  cannot  take  advantage  of  their  own 
default." 

A.  agreed  with  a  railroad  company  to  convey  to  them  a  lot  of  land, 
being  part  of  a  tract  owned  by  him ;  and  the  company  agreed  to 
erect  a  depot  thereon ;  but,  before  a  conveyance,  the  lot  and  all  or 
most  of  the  tract  were  sold  on  execution]  and  conveyed  to  B.,  who 
subsequently  conveyed  to  the  company,  but  they  built  no  depot  there. 
Held,  the  agreement  became  void  by  A.'s  ceasing  to  own  the  land 
before  performing  it.  Sayre  v.  Harlem,  &;c.  3  Dner,  54.  Oakley,  C. 
J.,  says :  "  He  (the  plaintiff)  made  the  agreement  as  owner  of  the 
fee.  It  was  only  while  he  remained  such  owner  that  he  was  capable 
of  executing  it,  and  there  is  no  pretence  for  saying,  that  during  the 
continuance  of  his  ownership,  there  was  any  breach  of  the  agreement 
on  the  part  of  the  defendants,  that  could  entitle  him  to  maintain  an 
action.  The  defendants  were  certainly  not  bound  to  erect  a  depot 
until  the  lots  upon  which  it  was  to  be  erected  were,  in  fact,  conveyed 
to  them,  and  the  evidence  conclusively  shows  that  no  such  conveyance 


TITLE.  283 

was  received  by  them,  until  that  made  by  Adriance,  in  1849.  Many 
years,  however,  before  this  time,  Hall  had  ceased  to  be  the  owner. 
The  conveyance  by  the  sheriff  to  Adriance  in  April,  1842,  extin- 
guished his  title,  and  by  a  necessary  consequence,  annulled  the  agree- 
ment between  him  and  the  defendants.  The  agreement  between  him 
and  the  defendants  was  just  as  effectually  dissolved  by  the  conveyance 
made  by  the  sheriff  to  Adriance,  as  it  would  have  been,  had  the  con- 
veyance been  made  by  himself.  The  clause  in  the  conveyance  from 
Adriance  to  the  company,"  (specifying  that  the  land  was  to  be  used 
for  a  depot)  "  is  not  a  covenant,  but  a  mere  declaration  of  the  use  or 
purpose  to  which  the  lots  were  meant  to  be  applied.  We  cannot  re- 
gard it  as  a  revival  of  the  agreement  of  1840,  or  as  a  confession  that 
this  agreement  was  still  subsisting  ;  and  were  it  possible  for  us  to 
give  it  this  construction,  the  unanswerable  objections  still  remain  that 
the  agreement  was  not  performed  by  Hall,  and  consequently  that 
there  was  no  consideration  proceeding  from  him  that  could  create  an 
obliga,tion  to  him  on  the  part  of  the  company,  and  that  no  damages 
which  the  law  can  notice  were,  or  could  have  been  sustained  by  him 
from  the  refusal  or  neglect  of  the  company  to  perform." 

It  has  been  seen  (p.  281)  that  a  vendee  is  not  bound  to  take  his 
title  from  a  third  person.  On  the  other  hand,  it  is  held,  that  a  bill 
for  specific  performance  does  not  lie,  against  one  who  contracted 
to  convey  to  the  plaintiff  land  of  which  he  was  not  the  owner; 
the  plaintiff  having  knowledge  of  the  fact,  and  it  being  expressly 
stipulated  that  the  deed  shall  come  from  a  third  person.  Nor  will 
the  Court  retain  the  bill  for  the  purpose  of  awarding  damages.  Hill 
V.  Fiske,  38  Maine,  520.  Appleton,  J.,  says  (p.  521)  :  "  There  is  no 
allegation,  that  at  the  time  when  this  process  was  instituted,  he  (the 
defendant)  had  the  title  or  the  means  of  compelling  its  conveyance. 
It  is  not  in  proof  that  he  has  since  acquired  the  means  of  doing 
either.  Not  having  the  title,  no  decree  for  a  conveyance  will  be  made 
against  him.  In  Hatch  v.  Cobb,  4  Johns.  Ch.  560,  the  Chancellor 
says :  '  A  specific  performance  cannot  be  decreed.  The  defendant 
has  fairly  disabled  himself  before  the  suit  was  brought,  and  this  was 
known  to  the  plaintiff.'  In  Kempshall  v.  Stone,  5  Johns.  Ch.  193, 
the  Chancellor  says :  '  That  where  the  defendant  has  disabled  himself 
before  filing  the  bill,  and  that  the  plaintiff  knew  that  fact  before  he 
commenced  his  bill,  it  is  then  reduced  to  the  case  of  a  bill  filed 


284  APPENDIX. 

for  the  sole  purpose  of  assessing  damages  for  a  breach  of  contract, 
which  is  a  matter  strictly  of  legal  and  not  of  equitable  jurisdiction.' 
The  same  doctrine  has  been  held  to  apply  where  the  party  contract- 
ing to  convey  never  had  any  title  to  the  premises  contracted  to  be 
conveyed.  Morse  v.  Elmendorf,  11  Paige,  279.  It  is  obvious,  where 
the  party  contracting  has  no  title  to  the  land  agreed  to  be  conveyed, 
that  there  is  nothing  upon  which  a  decree  for  a  specific  performance 
can  operate.  Woodark  v.  Bennet,  1  Cow.  711."  As  to  the  claim 
of  compensation,  it  is  further  remarked  :  "  The  cases  of  compensation 
in  equity,  I  consider,"  says  Lord  Ch.  Baron  Alexander,  in  Newham 
V.  May,  13  Price,  752,  "to  have  grown  out  of  the  jurisdiction  of 
Courts  of  Equity,  as  exercised  in  respect  to  contracts  for  the  pur- 
chase of  real  property,  Avhen  it  is  often  ancillary  as  incidentally 
necessary  to  effectuate  decrees  of  specific  performance.  It  is  well 
settled,  that  where  the  vendee  never  had  title  to  the  land  contracted 
to  be  sold,  or  where  he  has  conveyed  the  same  subsequent  to  the 
making  the  contract,  so  that  he  has  not  the  power  specifically  tj3  per- 
foi*m  the  same,  and  that  fact  is  known  to  the  vendee,  the  latter  cannot 
file  a  bill  in  equity  for  the  mere  purpose  of  obtaining  compensation 
in  damages." 

Where  the  vendor*  conveys  to  a  third  person,  the  vendee  may 
recover  the  amount  of  his  payments  and  interest.  Hurd  v.  Denny, 
16  111.  492,  Scates,  C.  J.,  says  (p.  493)  :  "  The  instruction  refused, 
we  think  misconceived  the  nature  of  this  action.  It  seems  to  be 
predicated  upon  the  idea  that  the  suit  is  in  the  nature  of  an  action 
for  a  specific  performance,  and  consequently,  to  entitle  himself  to  a 
I'ecovery,  defendant  must  show  pei'formance  of  precedent  conditions. 
But  the  suit  is  to  recover  back  the  consideration  paid,  on  a  breach  of 
the  contract  by  plaintiff  by  selling  and  conveying  the  land  to  another. 
Plaintifi'  has  put  it  out  of  his  power  to  perform,  by  sale  to  another. 
Yet  the  principle  he  contends  for  would  lead  to  this  injustice  and 
hardship,  that  had  there  been  two  instalments  due,  as  precedent  con- 
ditions to  a  conveyance,  and  after  the  payment  of  the  first  he  should 
sell  the  land  to  another,  and  so  rescind  the  contract  on  his  part,  yet 
the  other  party  could  not  treat  it  as  rescinded,  and  sue  for  his  pay- 
ment back  again,  without  first  paying  the  second  instalment,  and 
thereby  adding  to  the  amount  of  his  damage,  injurj^,  and  the  amount 
he  would  be  entitled  to  recover.     Were  defendant  relying  for  rescis- 


TITLE.  285 

sion  upon  the  simple  non-compliance  of  plaintiff,  it  might  be  neces-- 
sary  to  establish  his  right  to  rescind,  by  showing  performance,  or  an 
offer  to  perform."  The  Court  proceed  to  allow  interest,  upon  the 
ground,  that,  "when  the  money  was  paid,  it  Avas  intended  to  be  paid 
in  good  faith,  on  the  land  ;  but  without  apprising  defendant  of  the 
fact,  plaintiff  resold  the  land,  and  concealed  the  fact  from  defendant's 
knowledge,  until  called  on  for  a  deed." 

Bill  for  a  sale  of  land  to  pay  the  purchase-money.  Defence,  a 
cloud  on  the  title.  By  delay  in  bringing  the  cause  to  a  hearing, 
partly  through  fault  of  the  vendee ;  the  lapse  of  time,  and  possession 
without  disturbance  or  interruption,  quieted  the  title.  The  defect 
being  thus  cured,  a  sale  was  decreed,  but  with  costs  to  the  purchaser. 
Peers  v.  Barnett,  12  Gratt.  410.  Allen,  J.,  says  (p.  415)  :  "A  dis- 
tinction seems  to  have  been  taken  by  some  of  the  reported  cases,  as  to 
the  relief  a  Court  of  Equity  will  extend  to  a  vendee  who  has  ac- 
cepted his  deed  with  covenants  of  general  warranty,  where  he  seeks 
to  enjoin  a  judgment  for  the  collection  of  the  purchase-money,  and 
the  case  where  the  vendor,  instead  of  proceeding  against  the  vendee 
personally,  is  attempting  to  sell  the  land  under  a  deed  of  trust  or  by 
a  bill  in  equity  ;  that  although  the  facts  may  not  authorize  the  Court 
to  enjoin  the  collection  of  the  purchase-money  by  a  proceeding  against 
the  vendee  at  law,  yet,  as  a  Court  of  Equity  reprobates  a  sale  of 
land  when  clouds  are  hanging  over  the  title,  it  will  for  the  benefit  of 
the  parties,  and  the  security  of  the  purchaser  at  any  sale  of  the 
subject,  enjoin  or  refuse  to  decree  a  sale  of  the  land  until  the  title  is 
cleared  up.  The  case  of  Beall  v.  Lively,  8  Leigh,  658,  is  a  case  of 
the  first  class.  It  was  there  decided  that  where  a  vendee  is  in  posses- 
sion of  land  under  a  conveyance  with  general  warranty,  and  the  title 
has  not  been  questioned  by  any  suit  prosecuted  or  threatened,  such 
vendee  has  no  claim  to  relief  in  equity  against  the  payment  of  the 
purchase-money,  unless  he  can  show  a  defect  of  title  respecting 
which  the  vendor  was  guilty  of  fraudulent  concealment  or  misrepre- 
sentation, and  which  the  vendee  had  at  the  time  no  means  of  dis- 
covering. In  Ralston  v.  Miller,  3  Rand.  44  ;  Koger  v.  Lane,  5  Leigh, 
606 ;  Clark  v.  Hardgrove,  7  Gratt.  399,  this  Court  has  extended  the 
relief  to  cases  where  the  vendee,  placing  himself  in  the  position  of 
the  superior  claimant,  can  show  clearly  that  the  title  is  defective. 
The  principle  that  a  Court  will  not  sell  or  permit  a  sale  of  land  with 


286  APPENDIX. 

R  cloud  hanging  over  the  title,  is  affirmorl  in  Lane  ^^  Tidhall,  Gilm. 
130  ;  Gay  v.  Hancock,  1  Rand.  72  ;  Miller  v.  Ai-gyle,  5  Leigh,  460." 

In  a  late  case  in  New  Jersey,  it  was  held,  that  a  purchaser  will  not 
be  compelled  to  take  and  pay  the  agreed  price  for  an  incunil)C'rcd  or 
doubtful  title,  unless  he  has  expressly  agreed  to  do  so.  Ciiambers 
r.  Tulane,  1  Stockt.  14G.  Thus  a  devise  was  made  as  follows:  "  All 
and  every  part  and  j)arcel  of  my  real  and  personal  estate  hereinbefore 
not  demsed  and  hequeathed,  after  ray  son  arrives  at  the  age  of  twenty- 
one  years,  in  case  his  mother  hath  then  departed  this  life,  shall  be 
sold  at  the  discretion  of  my  executors."  Held,  that  land  devised,  but 
which  by  these  terms  had  returned  and  become  part  of  the  estate, 
was  not  embraced  in  the  power  of  sale.  Also,  that  the  power  of 
sale  was  personal,  and  did  not  pass  to  an  executor  of  the  executor. 
Upon  these  grounds,  held,  a  bill  to  enforce  specific  performance 
against  a  purchaser  of  the  land  should  be  dismissed ;  but  without 
costs,  the  vendor  having  acted  in  good  faith  and  by  advice  of  counsel. 
The  Court  say  (p.  153)  :  "Li  decreeing  a  specific  performance,  the 
Court  must  exercise  its  discretion — not  an  arbitrary  discretion — but 
a  discretion  regulated  and  governed  by  established  principles.  As  a 
general  principle,  it  is  well  settled  that  the  Court  will  not  compel  a 
party  to  pay  his  money  and  take  a  doubtful  title,  or  an  incumbered 
property  unless  the  party  has  bargained  for  such.  There  is  no  pre- 
tence that  such  was  the  case  here.  The  complainant  acted  in  good 
faith.  He  supposed  he  could  give  a  good  title  to  the  land,  and  such 
was  the  understanding  of  both  parties  in  entering  into  the  agree- 
ment." 

In  ease  of  an  agreement  to  convey  with  a  clear  title,  and  that  part 
of  the  price  shall  be  paid  for  the  release  of  a  mortgage  ;  if  the  ven- 
dor procures  such  release,  the  purchaser  cannot  refuse  to  jjerform  his 
part,  and  demand  a  conveyance  free  from  incumbrance.  Devling  v. 
Little,  2 G  Penn.  502. 

The  defendant  bought  certain  mortgaged  premises  at  a  foreclosure 
sale,  paying  part  of  the  price  in  cash  and  giving  a  note  for  the 
balance,  and  took  from  the  mortgagee's  attorneys  a  writing,  by  which 
he  was  "  to  have  a  title  on  the  payment  of  said  note."  Held,  the 
plaintiff  could  not  bring  an  action  on  the  note,  until  he  had  prepared 
and  tendered  to  the  defendant  the  proper  papers  for  perfecting  a  title. 


TITLE.  287 

Culver  V.  Burgher,  21  Barb.  324.  Marvin,  J.,  says  (p.  32G) :  "  The 
rule  is  well  settled  that  the  vendor  of  land  cannot  maintain  an  action 
for  the  price  of  the  land,  when  the  covenants  or  promises  arc  mutual 
or  dependent,  until  he  has  tendered  performance  on  his  part.  If  the 
consideration  is  to  be  paid  by  the  vendee  and  the  conveyance  is  to  be 
made  by  the  vendor  at  the  same  time,  the  vendor  must  tender  and 
prepare  the  conveyance  before  he  brings  his  action.  When  the  deed 
is  to  be  given  07i  or  upon  the  payment  of  the  consideration,  the  acts 
of  paying  and  conveying  are  concurrent  acts.  (Hardin  v.  Kretsingei", 
17  Johns.  293  ;  Robb  v.  Montgomery,  20  Id.  15  ;  Judson  v.  Wass,  11 
Id.  525  ;  Johnson  v.  Wygant,  11  Wend.  48  ;  Williams  v.  Healey,  3 
Denio,  363.)" 

Where  there  is  a  mutual  obligation  on  the  purchaser  to  pay  the 
price,  and  the  vendor  to  convey  the  land ;  an  offer  and  readiness  to 
perform  on  the  part  of  the  former  are  suificient,  especially  if  the 
vendor  wholly  refuses  to  convey.  Stone  v.  Sprague,  29  Barb.  509. 
The  Court  remark  (p.  514)  :  "  Before  the  time  for  payment  expired, 
an  interview  was  had  with  the  plaintiff,  during  which  the  amount  was 
tendered,  in  specie,  and  a  deed  requested.  He  replied  that  he  would 
not  receive  any  thing,  nor  give  a  deed.  Here  then  was  an  absolute 
tender  of  the  money,  a  refusal  to  receive-,  and  to  execute  a  convey- 
ance. It  is  true  no  cleed  was  offered  by  the  defendant,  at  that  time, 
ready  for  execution.  But  that  was  not  necessary,  and  if  it  had  been, 
the  general  rule  that  a  strictly  legal  tender  may  be  waived,  by  an 
absolute  refusal  to  receive  the  money  or  do  the  act  required  clearly 
applies,  on  the  principle  that  no  man  is  bound  to  perform  a  nugatory 
act." 

Agreement  to  execute  a  deed,  on  condition  that  the  purchaser 
should  pay  the  price  by  instalments.  The  vendor  cannot  wait  till  the 
last  instalment  falls  due,  and  then  sue  for  the  whole  amount,  without 
tendering  a  deed.  Beecher  v.  Conradt,  3  Kern.  108.  Gardiner, 
C.  J.,  says  (p.  109)  :  "  The  plaintiff  had  a  right  to  sue  for  each  in- 
stalment as  they  severally  became  payable  ;  but  this  right  he  has 
waived,  and  now  seeks  to  recover  the  whole  purchase-money  in  this 
action,  without  an  averment  or  proof  of  a  tender  of  a  conveyance,  or 
a  readiness  or  willingness  to  convey.  It  is  not  denied  by  the  Court 
below,  that  if  the  several  payments  had  been  made  as  they  fell  due, 
and  the  suit  had  been  commenced  for  the  last  instalment  alone,  that 


288  APPENDIX. 

the  plaintiff  must  have  made  such  an  averment  and  sustained  it  by 
proof,  if  questioned.  It  is,  however,  said  that  a  right  of  action  ac- 
crued as  tlie  instahnents  became  payable,  which  the  non-performance 
of  the  plaintiff  would  not  discharge.  This  doctrine  assumes  a  right, 
upon  the  part  of  the  plaintiff,  to  divide  his  cause  of  action  into  as 
many  suits  as  there  were  instalments.  The  first  answer  to  this  sug- 
gestion is,  that  the  consideration  for  the  conveyance  by  the  vendor 
was  an  entire  sum,  to  be  paid  by  instalments ;  that  the  whole  was 
due  at  the  commencement  of  the  action,  and  the  plaintiff  has  sued 
for  the  whole  purchase-money  without  attempting  to  distinguish,  in 
his  complaint  or  evidence,  between  the  different  instalments.  The 
second  answer  is,  that  the  plaintiff  having  elected  to  wait  until  the 
fifth  and  last  instalment  became  due,  and  upon  the  payment  of  which 
the  defendant  would  be  entitled  to  a  deed,  cannot  now  sustain  his 
action  for  either  instalment,  without  proof  of  performance  or  readi- 
ness to  perforni  on  his  part.  The  covenants,  as  to  the  four  first 
instalments,  were  originally  independent ;  but  the  plaintiff,  by  his 
omission  to  insist  upon  a  strict  performance  by  the  defendant,  has  lost 
the  right  to  bring  more  than  one  suit  for  the  money,  which  formed 
the  consideration  for  his  conveyance.  The  defendant,  by  a  tender  of 
the  whole,  which  he  has  now  a  right  to  pay,  would  be  entitled  to  his 
deed.  The  plaintiff,  on  the  other  hand,  must  establish  his  right  to 
the  consideration  as  an  entirety,  or  he  cannot  recover  any  thing.  If 
he  recovered  in  this  action  but  $50,  the  judgment  would  be  a 
complete  bar  to  every  further  claim  for  the  purchase-money,  and 
when  that  judgment  was  paid  the  defendant  would  be  entitled  to  his 
deed." 

Bond  to  convey  at  a  specified  time,  after  payment  of  the  last  instal- 
ment of  the  price.  Held,  the  vendee  could  not  compel  a  conveyance 
till  such  payment,  the  title  being  retained  as  security  for  the  whole 
purchase-money.  Delassus  v.  Boston,  19  Mis.  420.  The  Court  say 
(p.  429):  "It  would  be  absurd  to  suppose  that  the  vendee  could 
obtain  a  specific  execution  of  the  contract  to  convey,  without  paying 
the  purchase-money.  Reason  and  authority  both  forbid  it.  The 
agreement  of  the  parties,  as  evidenced  by  the  instruments  they  exe- 
cuted, was,  that  the  vendors  should,  at  least,  be  secure  in  the  first 
instalment  of  the  purchase-money,  and  for  that  purpose,  they  were 
to  have  personal  security  for  its  payment,  and  they  were  to  rely  upon 


TITLE.  289 

the  land  for  the  payment  of  the  other  instalments,  if  the  vendee  was 
otherwise  unable  to  pay  them,  and  to  give  effect  to  this  agreement, 
the  title  w^as  retained  in  the  vendors.  Wliere  the  vendors  have  title 
in  themselves  at  the  time  of  the  agreement  to  sell,  and,  instead  of 
making  a  conveyance,  they  make  an  obligation  to  convey  at  the  time 
the  last  note  for  the  purchase-money  becomes  due,  it  would  require 
the  clearest  possible  evidence  of  their  intent  to  release  the  land  from 
a  lien  for  the  purchase-money,  to  justify  a  Court  in  holding  them 
bound  to  convey  without  being  paid.  No  such  intent  appears  in  this 
case.  In  Bassein  v.  Serra,  14  Ves.  313;,  Sir  Wm.  Grant  says:  '  If  a 
party  selling  an  estate  chooses  to  stipulate  that  the  contract  shall  be 
completed,  and  the  land  conveyed,  trusting  for  the  payment  of  the 
purchase-money  to  the  personal  obligation  of  the  purchaser,  he  can- 
not afterwards  say,  you  shall  not  have  the  estate  before  you  pay, 
because,  under  the  contract,  the  right  to  a  conveyance,  is  not  depend- 
ent  on  the  payment  of  the  purchase-money.  But  if  the  time  had 
come  when  the  covenant  was  to  be  performed,  and  the  consideration 
was  to  be  paid,  the  Court  would  not  permit  the  party  to  receive  that 
which  he  had  purchased,  w^ithout  taking  care  that  he  paid  the  stipu- 
lated price  for  it.'"     Corsbie  v.  Free,  1  Craig  &  Philips,  74 

It  has  been  held  in  Pennsylvania,  that  a  vendee  once  fairly  in 
possession  under  articles  of  purchase,  but  illegally  ousted,  may  re- 
cover in  an  action  of  ejectment,  without  bringing  into  Court  the 
balanoe  of  the  purchase-money  due.  D'Arras  v.  Keyser,  26  Penn. 
249.  Woodward,  J.,  says  (p.  252)  :  "The  plaintiff  was  suing  for  a 
possession  which  had  been  delivered  to  her  in  pursuance  of  a  con- 
tract which  she  had  fully  performed.  She  had  not  indeed  obtained 
the  legal  title,  but  equity  considers  that  done  v^hich  ought  to  be 
done,  and  when  she  tendered  the  purchase-money  and  interest,  equity 
would  have  compelled  Keyser  to  convey  the  legal  title.  Thence- 
forth she  was  no  longer  his  tenant,  but  a  purchaser  in  full  posses- 
sion, and,  in  contemplation  of  law,  clothed  with  the  legal  title.  The 
proceeding  which  wrested  that  possession  from  her,  though  under  the 
forms  of  law,  was  null  necessarily,  because  long  before  it  was  in- 
stituted the  relation  of  landlord  and  tenant  had  ceased  to  exist.  It 
was  no  better,  as  to  its  effect,  than  if  the  possession  had  been  ob- 
tained from  her  by  force  or  fraud.  Whilst  a  vendee  who  has  never 
had  possession  must  come  into  Court  prepared  for  full  performance,  a 

VOL.  H.  25 


290  APPENDIX. 

vendee  to  whom  possession  had  been  delivered  in  pursuance  of  the 
contract,  who  has  tendered  full  performance,  and  then  lost  the  posses- 
sion without  assent  or  agreement,  may  recover  it  without  bringing 
the  money  into  Court.  This  is  the  doctrine  of  many  cases.  The 
facts  are  imperfectly  stated  in  Bossier  i\  Niesly,  2  Ser.  &  R.  3o5,  but 
the  language  of  Chief  Justice  Tilghman  clearly  recognizes  the  prin- 
ciple I  have  stated.  He  says,  it  is  objected  that  the  plaintiffs  ought 
to  have  tendered  the  balance  of  the  purchase-money  and  interest  be- 
foi*e  they  commenced  suit.  But  supposing  the  law  to  be  so  in  general, 
this  case  forms  an  exception,  because  as  it  was  submitted  to  the  jury, 
we  must  understand  that  by  the  terms  of  the  contract,  possession  was 
to  be  delivered  before  payment  of  the  whole  purchase-money,  and 
was  delivered  accordingly ;  after  which  the  plaintiffs  were  ousted.  The 
plaintiffs  then  had  the  right  of  possession  before  payment  of  the  pur- 
chase money,  and,  being  ousted,  had  a  right  to  recover  the -possession. 
"  Harris  v.  Bell,  10  Ser.  &  R.  39,  is  full  to  the  point.  Here  the 
vendee  died  in  possession  under  articles  of  agreement,  the  purchase- 
money  not  having  been  fully  paid,  and  the  administrator  thinking  the 
property  was  not  worth  what  was  due  upon  it,  surrendered  it  to  one 
Brieker,  who  the  next  day  turned  it  over  to  the  vendor.  The  only 
heir  of  the  vendee  brought  this  ejectment,  and  it  was  proved  that 
prior  to  the  institution  of  the  suit,  an  offer  was  made  to  pay  what  was 
due  upon  the  articles,  which  the  defendant  refused  to  receive,  saying 
he  would  have  taken  it  if  it  had  been  paid  when  it  was  due.  The 
second  point  of  defence  taken  was  that  Harris,  the  vendor,  had  a 
right  to  retain  the  possession  till  the  money  was  paid  to  him  or 
brought  into  Court,  but  this  Court  held,  that,  although  he  did  not 
obtain  the  possession  by  force,  yet  he  did  so  illegally ;  that  under  the 
circumstances  of  the  case  he  was  a  trustee  of  Mrs.  Bell,  and  could 
not  resist  her  claim  to  restoration  of  the  premises ;  that  where  the 
vendor  puts  the  vendee  in  possession  before  payment  of  the  money, 
and  then  forcibly  regains  the  possession,  or  acquires  it  from  the 
trustee  of  the  vendee,  qua  tenant,  he  is  bound  to  restoi'e  it.  I  am 
aware  that  some  of  the  observations  of  Judge  Duncan  in  this  case 
have  been  qualified  in  subsequent  cases.  See  Griffith  v.  Dobson,  3 
Penn.  Rep.  228,  and  Judge  Rogers's  remarks  in  Foster  v.  M'Divit, 
9  "Watts,  345  ;  but  as  an  authority  for  the  principle  for  which  I  have 
cited  it,  Harris  v.  Bell  has  never  been  shaken,  but,  on  the  contrary, 
was  cited  with  approbation  by  Judge  Kennedy,  in  Gregg  v.  Patterson, 


TITLE.  291 

9  "Watts  &  Ser.  208,  and  by  Judge  Huston,  in  Dixon  v.  Oliver,  5 
"Watts,  372."  The  learned  Judge  proceeds  to  remark  :  "  The  parties 
are  restored  to  their  contract  relation,  and  all  of  their  mutual  reme- 
dies remain.  The  vendor  may  enfoi'ce  payment  of  the  purchase- 
money  by  an  action  of  covenant  on  the  articles,  or  by  ejectment ;  the 
vendee  may  compel  conveyance  of  the  title,  by  covenant  or  bill  in 
equity  for  specific  performance.  If  there  has  been  a  tender  of  the 
purchase-money  as  in  this  case,  the  vendor  has  only  to  execute  the 
deed  and  take  the  money." 

Action  by  vendor  against  vendee,  to  recover  part  of  the  purchase- 
money,  retained  by  the  latter  to  extinguish  an  outstanding  lien,  but 
which  the  plaintiff  has  subsequently  paid,  after  an  action  brought 
against  him.  Held,  the  plaintiff  need  not  prove  his  own  liability  upon 
the  lien,  because  it  would  be  extinguished  and  the  defendant  discharged, 
by  payment  made  even  by  a  stranger.  Evans  v.  See,  23  Penn.  88. 
The  Court  say  (p.  92)  :  "  Assuming,  then,  that  the  payment  was  made 
to  the  proper  party,  is  it  of  any  consequence  in  the  present  case  that 
it  was  made  ly  a  party  not  compellable  to  make  it  ?  The  question 
here  is,  whether  the  payment  of  the  ground-rent  did  not  release  the 
fund  pledged  as  indemnity  against  it  ?  "We  think  it  did.  The  pay- 
ment extinguished  the  ground-rent,  and  the  lien  of  it  was  gone  for- 
ever. The  owner  of  it,  being  satisfied,  could  never  assert  it  against 
premises  sold  by  Evans  to  the  defendants.  If  "Wain  had  forgiven 
it,  cancelled  it  without  consideration,  or  if  it  had  been  paid  off  by  a 
mere  stranger,  it  could  not  longer  encumber  the  premises  or  be  set 
up  against  the  plaintiff's  action.  But  Evans  was  not  a  mere  stranger 
or  volunteer.  If  not  strictly  liable  for  the  ground-rent,  he  had  such 
an  interest  in  its  extinguishment  as  entitled  him  to  pay  it.  He  was 
sued  for  it,  and  its  removal  was  indispensable  to  the  closing  of  his 
contract  of  sale.  Instead  of  resisting  "Wain's  right  to  recover  from 
him,  he  chose  to  remove  the  only  obstacle  in  the  way  of  his  recover- 
ing the  balance  of  his  purchase-money  from  this  defendant,  and  he 
had  a  right  to  do  so.  The  payment  was  well  made  by  him,  and  could 
not  be  disaffirmed  or  recovered  back  by  him,  nor  impeached  by  others. 
From  that  moment,  the  money  in  the  defendant's  hands  belonged, 
ex  cequo  et  bono,  to  the  plaintiff,  and  the  action,  as  to  the  common 
counts,  was  brought  in  good  time  for  its  recover]^" 


292  APPENDIX. 

Wlicrc  one  buys  land  with  the  funds  of  and  in  trust  for  another, 
taking  the  deed  to  himself;  contracts  to  sell,  but  afterwards  rescinds 
the  sale  without  notice  to  the  cestui ;  this  is  an  abandonment  of  the 
trust,  and '  assumpsit  lies  against  him  to  recover  the  sum  advanced 
for  the. purchase.     Duncan  v.  Lawrence,  24  Penn.  154. 

The  defendant  agreed  in  writing  to  sell  and  convey  land  to  the 
plaintiff,  who  entered,  paid  part  of  the  price,  and  afterwards  demand- 
ed a  deed'  and  offered  to  pay  the  balance.  The  defendant  was  unable 
to  make  a  good  title,  and  the  plaintiff  brings  this  action,  for  money 
had  and  received,  to  recover  the  sum  paid ;  but  still  retaining  posses- 
sion. Held,  the  action  did  not  lie.  ITurst  v.  Means,  2  Swan,  594. 
The  Court  say  (p.  598)  :  "  The  rule  on  this  subject  is  stated  in 
Clarke  v.  Locke,  11  Humph.  R.  300.  If  the  vendor  on  a  proper 
demand  made,  refuse,  or  be  unable  to  execute  his  contract,  the  vendee 
may  bring  his  action  thereon  for  the  recovery  of  damages,  thereby 
affirming  the  contract ;  or,  at  his  election,  may  disaffirm  the  contract 
ah  initio,  and  sue  for  money  had  and  received  to  his  use.  The  ven- 
dee has  elected  to  disaffirm  the  contract.  Do  the  facts  amount  to  a 
disaffirmance  and  rescission  of  the  contract  ?  "We  are  of  opinion 
that  they  do  not.  It  is  a  valid  contract  in  writing,  and  was  in  part 
executed  by  the  vendor ;  for  he  placed  the  vendee  in  possession  under 
it.  This  possession  has  not  been  restored,  but  continued  in  the  ven- 
dee at  the  time  this  suit  was  instituted.  The  vendee  pretends  to  dis- 
affirm and  rescind  the  contract,  and  yet  holds  the  possession,  a  benefit, 
under  it.  It  is  in  this  respect  that  the  contract  is  not  rescinded  ;  and 
the  action  can  only  be  maintained  upon  its  absolute  and  total  rescis- 
sion. It  would  be  unreasonable  and  unjust  to  permit  a  purchaser 
to  retain  the  possession  and  use  of  the  thing  purchased,  and  yet  to 
recover  back  the  consideration  as  for  a  defect  of  title.  The  action 
for  money  had  and  received  is,  in  its  nature,  equitable  ;  and  it  cannot 
be  maintained  upon  a  principle  so  unequal  and  unjust.  When  a 
contract  is  properly  rescinded,  the  parties  are  placed  in  statu  quo. 
Where,  however,  the  contract  is  void  in  itself,  no  act  of  rescission 
is  necessary,  in  order  to  maintain  the  action  for  money  had  and  re- 
ceived upon  it.  No  right  or  duty  can  be  predicated  upon  a  void 
contract.  It  is  the  same  as  if  it  had  not  been  made.  Therefore,  if  a 
party  enter  upon  land  and  pay  money  under  a  parol  contract,  for  its 
purchase,  he  may  recover  it  back,  by  action  for  money  had  and  re- 


TITLE   TO   LEASEHOLDS.  293 

ceived  for  his  use,  without  restoring  the  possession  or  doing  otlier 
acts  to  rescind  the  contract ;  for  the  contract  never  had  a  legal  ex- 
istence, and,  of  course,  no  action  could  be  maintained  upon  it." 
Walker  v.  Constable,  1  B.  &  P.  306 ;  Beckerman  v.  Kuykendol,  6 
Blackf.  E.  22  :  Pipkin  v.  James,  1  Plumph.  K.  325." 

Action  by  the  assignee  of  a  writing  obligatory.  Plea,  that  it  was 
made  for  the  price  of  sundry  tracts  of  land,  which  were  conveyed  to 
the  defendant  with  covenants  of  seizin,  for  quiet  enjoyment  and 
against  incumbrances,  but  were  in  fact  incumbered,  and  that  the  con- 
sideration had  therefore  failed.  On  demurrer,  held,  the  plea  was 
bad.     Worthington  v.  Curd,  15  Ark.  491. 

With  regard  to  the  effect  of  a  failure  of  title  in  part,  it  has  been 
recently  held,  that  a  mortgage,  given  to  secure  a  life  annuity  to  one 
who  has  been  dead  forty  years,  is  not  an  incumbrance  for  which  a 
vendee  may  refuse  to  accept  a  conveyance.  The  Court  say,  "  It  was 
not  fair  in  the  defendant  to  catch  at  such  an  objection  as  this.  It  was 
in  fact  no  incumbrance.  Still,  in  order  to  silence  him,  the  plaintiff 
procured  satisfaction  to  be  formally  entered  on  the  record."  Morgan 
V.  Scott,  26  Penn.  51,' 53. 

The  defendant,  desiring  to  purchase  certain  lots,  owned  in  undivided 
parts,  agreed  with  the  plaintiff  to  pay  him  so  much  for  each  of  the 
shares.  The  plaintiff  purchased  only  part  of  the  shares,  which  were 
conveyed  directly  to  the  defendant.  Held,  the  defendant  was  liable 
for  the  amount  wdiich  he  agreed  to  pay  for  the  shares  pui'chased, 
although  all  agreed  for  were  not  purchased ;  and,  having  accepted 
the  conveyances  and  taken  possession,  was  estopped  to  deny  that  the 
title  was  good.     Robinson  v.  Snyder,  25  Penn.  203. 


Vol.  I.  p.  262.     Title  to  Leaseholds. 

An  executory  contract  requires  a  conveyance  in  fee,  if  such  be  the 
manifest  intention,  though  no  words  of  inheritance  are  used.     Gaule 
25* 


294  -  APPENDIX. 

V.  Bilyenu,  25  Penn.  521.  Thus  a  lease  was  made  for  seven  years, 
with  the  right  on  the  part  of  the  tenant  to  lake  the  property  upon  a 
certain  ground-rent  at  any  time  within  tlie  first  three  years.  The 
land  was  accordingly  conveyed  in  fee  within  the  time,  and  the  tenant 
immediately  conveyed  to  a  third  person,  subject  to  the  ground-rent. 
It  was  held,  that  by  the  lease  the  tenant  took  an  equitable  title  in 
fee,  although  no  words  of  inheritance  were  used  in  the  lease,  it  being 
manifest  from  the  instrument  that  a  fee  simple  was  intended  ;  the 
parties  having  carried  out  that  intention  by  the  subsequent  convey- 
ance ;  and  the  tenant  having  made  valuable  improvements  upon  the 
premises. 

Bill  for  specific  performance  of  an  agreement  to  take  a  sub- 
lease. The  question  was,  whether  the  defendant  was  entitled  to  call 
for  the  production  of  the  plaintiff's  title,  or  whether,  if  he  had  had 
that  right,  he  had  not  waived  it  by  his  conduct.  Lord  Cranwoi'th 
says :  '■^Primd  facie,  every  person  contracting  for  a  lease  is  entitled 
to  call  for  the  title  of  the  lessor.  There  may  be  a  technical  difference 
between  the  case  of  the  lessor  being  the  pwner  of  the  fee  simple  and 
where  he  is  but  a  lessee  himself;  in  the  one  case  the  inquiry  as  to 
title  is  frequently  dispensed  with ;  in  the  other  seldom.  I  should 
have  thought  the  mere  taking  possession  not  important  ;  but  the 
question  is,  whether  the  conduct  of  the  defendant  was  not  inconsistent 
with  calling  for  the  title.  It  is  to  be  observed  that  part  of  the  con- 
tract was,  that  the  fixtures  were  to  be  paid  for  by  Sadd  at  a  valua- 
tion, and  he  concurred  in  the  nomination  of  the  agent  who  was  to 
make  the  valuation.  Now,  that  was  very  unlike  insisting  upon  his 
right  to  call  for  the  inspection  of  the  title,  for  the  valuation  was  an 
expense  which  he  would  not  have  had  to  incur  until  he  had  become 
the  lessee.  On  the  8th  of  December,  he  wishing  to  get  rid  of  his 
contract,  advertised  for  a  purchaser  of  his  interest,  he  having  pre- 
viously written,  on  the  25th  of  November,  to  the  solicitors  of  the 
plaintiff,  requesting  them  '  to  defer  the  preparation  of  the  leases,  &c., 
as  I  have  a  prospect  of  finding  a  partner  in  that  matter,  who,  I  think, 
should  be  included  therein.'  I  think  that  was  very  strong  to  show  he 
had  waived  all  right  to  call  for  the  title."  The  Lord  Chancellor  pro- 
ceeds to  mention  other  circumstances,  indicating  a  waiver  of  the 
party's  right  to  object  to  the  title,  such  as  examining  without  objection 
a  draft  of  the  lease,  &c.,  adding,  "  Upon  the  whole,  I  consider  the 


MISTAKE.  295 

result  irresistible  that  the  defendant  never  meant  to  ask  for  the  pro- 
duction of  the  title,  but,  as  a  matter  of  form,  I  think  the  language  of 
the  decree  is  wrong  in  saying  that  the  defendant  had  accepted  the 
title.  I  think  also,  with  Alexander,  C.  B.,  in  Warren  v.  Richardson, 
1  Younge,  1,  that  this  is  a  matter  not  of  form  merely,  but  of  sub- 
stance ;  for  suppose  that  the  plaintiff  could  not  execute  proper  leases? 
I  think,  therefore,  that  the  language  should  be,  as  in  Warren  v.  Rich- 
ardson, that  the  defendant  had  waived  his  right  to  call  for  the  title  of 
the  plaintiff."     Simpson  v.  Sadd,  31  Eng.  L.  &  Eq.  385. 


Vol.  I.  p.  303.     Mistake. 

In  reference  to  the  effect  of  a  mistake  in  law,  it  has  been  recently 
held  in  Arkansas,  that  a  vendor  is  bound  by  his  contract,  notwith- 
standing a  mistake  on  the  part  of  both  parties  to  the  contract  as  to 
his  legal  power  to  transfer  the  interest  of  his  wife  in  the  land. 
McDaniel  v.  Grace,  15  Ark.  465.  The  Court  say  (p.  488)  :  "  The 
plea  alleges  that  Hooper  contracted  to  make  to  defendants  a  valid 
conveyance,  and  failed  to  do  so.  Does  it  excuse  him  for  failing  to 
comply  with  his  contract,  that  the  defendants,  as  well  as  himself, 
perhaps,  were  mistaken  in  reference  to  his  legal  power  to  act  for  his 
wife,  and  on  account  of  such  mistake,  accepted  an  invalid  deed? 
Hooper  was  as  much  bound  to  know  the  law  as  the  defendants.  If 
he  knew  in  fact  that  he  had  no  legal  power  to  act  for  his  wife,  he 
perpetrated  a  fraud  on  the  defendants  in  attempting  to  convey  for 
her.  If  he  did  not  know  that  he  had  not  legal  authority  to  act  for 
her,  he  simply  labored  under  a  mistake  of  the  law.  The  defendants 
had  no  motive  to  cheat  themselves,  by  accepting  an  invalid  convey- 
ance ;  and  must,  therefore,  have  acted  under  a  mistake.  The  mis- 
take, then,  to  put  it  on  the  fairest  ground  for  Hooper,  was  mutual, 
and  can  hardly  furnish  an  excuse  for  his  failure  to  comply  with  his 
contract."     See  The  State  v.  Paup  et  al.,  13  Ark.  Rep.  129. 

Bill  for  specific  performance.  The  defendant,  a  mortgagee  with 
power  of  sale,  having  obtained  a  foreclosure  decree,  agreed  to  sell 


296  APPENDIX. 

the  estate,  with  a  proviso  for  tlie  usual  covenant  against  incumbrance 
created  by  herself.  The  plaintiff,  the  purchaser,  objected  to  the 
validity  of  the  decree,  and  required  a  conveyance  under  the  power, 
which  being  refused,  this  suit  was  brought.  The  defendant  proved 
that  the  above  clause  was  inserted  inadvertently,  and  that  she  never 
designed  to  incur  the  risk  of  opening  the  foreclosure  by  conveying 
under  the  power.  Held,  a  good  defence  ;  and  that  the  bill  should  be 
dismissed,  unless  the  plaintiff  would  accept  the  conveyance  which  the 
defendant  was  ready  to  execute.  Watson  v.  Marston,  31  Eng.  L.  & 
Eq.  1G7.  The  following  remarks  of  the  Court  (p.  172)  illustrate  the 
prevailing  rule  for  enforcing  or  refusing  specific  performance  in  cases 
of  this  nature :  "  Relief  by  way  of  specific  performance  is  always 
within  the  discretion  of  the  Court.  This  discretion  is  of  course  to 
be  exercised  carefully.  Specific  performance  is  not  to  be  withheld 
merely  upon  a  vague  idea  as  to  the  true  effect  of  the  contract  not 
having  been  known.  But,  upon  the  evidence  in  this  case,  I  think 
that,  although  there  may  have  been  an  intention  to  complete  after  the 
mortgage  title,  there  was  no  impression  on  Mr.  Fisher's  part  that  the 
effect  would  be  to  convert  the  defendant  into  a  trustee  of  the  surplus 
for  the  mortgagors.  He  may  have  intended  that  the  purchase  should 
be  completed  under  the  power ;  but  it  clearly  was  not  his  intention  to 
deprive  the  defendant  of  the  benefit  of  the  foreclosure.  The  rules 
upon  which  the  Court  acts  will  appear  from  two  or  three  cases.  In 
Costigan  v.  Hastier,  2  Sch.  &  Lef.  166,  Lord  Redesdale  said  :  'When 
a  person  undertakes  to  do  a  thing  which  he  can  himself  do,  or  has 
the  means  of  making  others  do,  the  Court  compels  him  to  do  it,  or  pro- 
cure it  to  be  done,  unless  the  circumstances  of  the  case  make  it  highly 
unreasonable  to  do  so.  Hastier  had  a  contract  with  Parker,  which 
he  could  have  carried  into  execution,  provided  he  could  either  have 
got  the  consent  of  the  mortgagee  to  the  lease,  contracted  for  by 
Parker,  or  the  claim  of  the  mortgagee  could  have  been  satisfied  by 
payment  of  a  mortgage  debt.  If  a  mortgagor  contracts  to  make  a 
lease,  the  tenant  has  a  right  to  say|:  "  You  shall  either  obtain  the  con- 
sent of  the  mortgagee  or  redeem  the  mortgage  ;  or  if  you  complain 
of  the  hardship  of  this,  you  shall  rescind  the  contract."  A  Court  of 
Equity  may  not  compel  the  mortgagor,  if  highly  inconvenient,  to  pay 
off  the  mortgage  for  the  purpose  of  giving  effect  to  the  contract ;  but 
then  he  shall  not  enforce  it  against  the  tenant,  if  the  tenant  does  not 
wish  to  abide  by  it.     If  the  tenant  will  not  give  up  the  contract,  the 


MISTAKE.  ■  297 

Court  might  say  that  it  should  not  be  specifically  enforced  against  the 
landlord  under  such  circumstances,  and  leave  the  tenant  to  seek  his 
compensation  in  damages  at  law.'  Wedgevvood  v.  Adams,  G  Beav. 
605,  was  as  strong  a  case  as  could  be.  There  Lord  Langdale  said  : 
♦  I  conceive  the  doctrine  of  the  Court  to  be  this,  that  the  Court  exer- 
cises a  discretion,  in  cases  of  specific  performance,  and  directs  a 
specific  performance  unless  it  should  be  what  is  called  highly  unrea- 
sonable to  do  so.  What  is  more  or  less  reasonable  is  not  a  thing  that 
you  can  define  ;  it  must  depend  on  the  circumstances  of  each  par- 
ticular case.  The  Court,  therefore,  must  always  have  regard  to  the 
circumstances  of  each  case  and  see  whether  it  is  reasonable  that  it 
should,  by  its  extraordinary  jurisdiction,  interfere  and  order  a  specific 
performance,  knowing  at  the  time  that  if  it  abstains  from  so  doing,  a 
measure  of  damages  may  be  found  and  awarded  in  another  Court. 
Though  you  cannot  define  what  may  be  considered  unreasonable,  by 
way  of  general  rule,  you  may  very  well,  in  a  particular  case,  come  to 
a  balance  of  inconvenience,  and  determine  the  propriety  of  leaving 
the  plaintiff  to  his  legal  remedy  by  recovery  of  damages.  If  we 
acceded  to  the  respondent's  argument,  we  should,  I  think,  be  deviat- 
ing from  the  principles  on  which  the  Court  has  acted  in  these  cases. 
The  Court  does  not  refuse  a  specific  performance  on  the  arbitrary 
discretion  of  the  Judge.  It  must  be  satisfied  that  the  agreement 
would  not  have  been  entered  into  if  its  true  effect  had  been  under- 
stood." 

It  is  no  ground  for  rescinding  a  sale,  that  lands  have  by  mistake 
been  included  in  the  deed,  to  which  the  vendor  has  no  title,  but  which 
did  not  make  part  of  the  property  purchased.  Butler  v.  Miller,  15 
B.  Mon.  617.  The  Court  say  (p.  626):  "Miller  does,  however, 
allege  in  general  terms  that  the  plaintiffs  had  no  valid  title  to  the 
lands  sold  him,  and  that  to  a  portion  of  it  they  had  no  valid  or  color- 
able title  whatever.  It  appears  in  testimony  that  the  title  is  in  some 
respects  defective  ;  although  Fitch  and  those  under  whom  he  claimed 
had  been  in  the  possession  of  it  for  many  years,  claiming  it  as  their 
own,  and  the  defendant  has  been  in  the  undisturbed  possession  of  the 
whole  of  the  property  actually  purchased  by  him,  ever  since  he 
obtained  the  possession  of  it  under  his  contract.  The  charge  of 
fraud  against  the  vendors  is  wholly  unsupported.  They  deny  having 
made  any  representations  to  the  purchaser  about  the  title,  or  to  have 


298  APPENDIX. 

stated  to  him  that  the  title  was  good,  although  they  admit  they  may 
have  said  that  in  their  opinion  it  was  good.  It  does  not  appear  that 
they  said  or  did  any  thing  to  induce  the  jjurchaser  to  believe  they  had 
any  knowledge  of  the  goodness  of  the  title.  The  very  terms  upon 
which  they  proposed  to  sell  should  have  put  him  on  his  guard,  and 
induced  him  to  investigate  the  title  for  himself.  They  only  agreed 
to  convey  the  title  which  had  been  vested  in  them  without  any  cov- 
enant of  warranty,  and  without  any  responsibility  upon  themselves 
whatever.  He  purchased  from  them  upon  these  terms,  and  after 
having  had  time  to  examine  the  title  he  accepted  a  deed  from  them 
in  fulfilment  of  the  contract  upon  their  part.  The  fact  that  the  deed 
does  not  contain  a  covenant  of  warranty,  cannot  operate  in  his  favor. 
It  proves  that  he  did  not  only  rely  upon  his  vendors,  but  was  willing 
to  purchase  the  property  and  risk  the  title.  Purchasers  have  a  right 
to  make  such  risking  contracts,  and  when  made  can  only  be  relieved 
from  them  upon  the  ground  of  fraud  in  their  procurement." 

Ejectment.  The  plaintiff  agreed  to  convey  all  his  right,  &c.,  in 
tract  No.  3133,  when  in  fact  the  tract  was  No.  4821.  The  pur- 
chasers had  examined  the  land  before  the  sale,  and  they  entered  and 
ndade  improvements,  but  did  not  pay  the  price.  Held,  the  misde- 
scription was  no  defence  to  this  action.  Miles  v.  Williamson,  24 
Penn.  135.  Black,  C.  J.,  says  (p.  142)  :  "  The  vendees  saw  the 
land,  examined  the  lines  on  the  ground,  investigated  the  vendor's 
title  and  took  it  at  their  own  risk.  They  got  possession  of  the  very 
land  which  they  meant  to  buy,  and  which  the  other  pai'ty  intended  to 
sell  them.  The  defendants  insist  that  this  error  entitles  them  to  keep 
the  land  without  paying  the  purchase-money.  They  will  neither 
rescind  the  contract  nor  perform  it,  and  this  action  is  brought  to 
compel  one  or  the  other.  The  jury  were  instructed  that  although 
the  vendees  agreed  to  run  the  risk  of  the  title,  yet  if  the  vendor  was 
guilty  of  any  fraudulent  misrepresentation  the  contract  was  void,  and 
he  could  not  recover ;  and  that,  if  the  contract  was  made  under  a 
mutual  mistake  injurious  to  the  vendees,  there  should  be  a  deduction 
from  the  purchase-money  large  enough  to  compensate  for  the  loss. 
It  is  impossible  to  see  how  any  thing  better  for  the  ^defendants  could 
have  been  done.  The  jury  negatived  the  allegation  of  fraud,  and, 
by  allowing  nothing  to  the  defendants  for  the  mistake  in  the  number, 
they  declared  their  conviction  that  it  did  no  injury.    The  vendees  got 


FRAUD.  299 

possession  of  the  land  they  bought  with  perhaps  a  defective  title ; 
but  the  verdict  is  conclusive  upon  us  that  the  title  would  have  been 
no  better  than  it  is  if  the  land  had  been  found  to  lie  within  the  limits 
of  the  survey  which  was  supposed  to  embrace  it.  The  defendants 
complain  of  it  as  a  hardship  that  they  should  be  compelled  to  sur- 
render possession  after  making  improvements.  They  took  the  title 
at  their  own  risk,  and  of  course  improved  the  land  on  the  same  terms. 
A  vendee  cannot  improve  away  the  vendor's  right  to  the  purchase- 
money.  One  who  has  bought  land  with  his  eyes  open,  and  without  a 
warranty,  is  as  much  bound  to  pay  for  it  after  he  puts  up  a  building 
on  it  as  he  was  before.  These  defendants  are  not  asked  to  surrender 
the  land,  and  lose  their  improvements.  They  may  keep  both  if  they 
will  perform  their  covenant." 

A  vendee  cannot  avoid  specific  performance,  or  claim  compensation, 
upon  the  ground  that  after  the  sale  the  land  was  laid  out  into  streets 
in  a  way  not  anticipated  by  the  parties,  and  injuriously  affecting  the 
shapes  of  the  lots ;  there  being  no  warranty  or  misrepresentation  by 
the  vendor.     Morgan  v.  Scott,  26  Penn.  51. 


Vol.  I.  p.  324.     Fraud. 

A  purchaser  of  land  containing  a  mine,  of  which  he  has  knowledge, 
is  not  bound  to  inform  the  vendor,  who  is  ignorant  of  it.  Harris  v. 
Tyson,  24  Penn.  347.  Black,  J.,  sa^s  (p.  359):  "A  purchaser  is 
not  bound  by  our  laws  to  make  the  man  he  buys  from  as  wise  as 
himself.  Every  man  must  bear  the  loss  of  a  bad  bargain  legally  and 
honestly  made.  If  not,  he  could  not  enjoy  in  safety  the  fruits  of  a 
good  one.  If  the  defendant,  during  the  negotiation  for  the  purchase, 
wilfully  made  any  misstatement  concerning  a  material  fact,  and  then 
misled  the  plaintiflf  and  induced  him  to  sell  it  at  a  lower  price  than  he 
otherwise  would,  then  the  contract  was  a  cheat  and  the  deed  is  void 
utterly.  But  in  all  cases  where  the  evidence  brings  the  parties  face 
to  face,  the  language  and  conduct  of  the  defendant  seems  to  have 
been  unexceptionable.  An  offer  was  made  and  rejected  to  prove  that 
Tyson  had  made  certain  statements  in  the  neighborhood  which  were 


300  APPENDIX. 

calculated  to  produce  the  impression  that  all  the  chrome  in  that 
region  was  not  very  valuable.  It  was  even  proposed  to  be  shown 
that  he  had  spoken  in  depreciating  terras  of  said  chrome  on  a  tract 
adjoining  Harris's.  It  would  at  least  have  been  useless,  and  it  might 
have  had  a  pernicious  influence  on  the  minds  of  the  jury,  to  have 
admitted  such  evidence.  To  invalidate  a  solemn  deed  by  showing 
that  misrepresentations  were  used  to  obtain  it,  there  must  be  very 
clear  proof  that  the  falsehood  was  told  directly  or  indirectly  to  the 
grantor.  It  is  not  to  be  supposed  that  he  was  influenced  by  a  state- 
ment neither  made  to  himself  nor  communicated  to  him.  If  the 
vendee's  conduct  in  all  his  transactions  with  the  vendor  was  honest 
and  fair,  he  is  not  answerable  in  this  action  for  what  he  may  have 
said  elsewhere  to  other  persons." 

Upon  a  bill  in  equity  by  a  vendee  to  rescind  the  sale  for  fraud,  and 
recover  the  purchase-money-,' the  plaintiff  must  show  a  surrender  of 
the  property,  or  an  offer  to  surrender  it,  and  that  the  vendor  can  be 
placed  in  static  quo.  It  is  not  sufficient  to  allege,  that  he  abandoned 
and  yielded  the  possession  of  the  land.  Davis  v.  Tarwater,  15  Ark. 
286.  The  Court  say  (p.  290)  :  "  The  rule  is  the  same,  whether  the 
rescission  is  sought  on  the  ground  of  fraud,  mistake,  or  for  any  other 
cause.  McDonald  v.  Fithian,  2  Gilman,  269  ;  13  Ark.  182  ;  Cun- 
ningham V.  Fithian,  2  Gilman,  651 ;  Griffith  v.  Depew,  3  A.  K.  Mar. 
180.  This  doctrine  conforms  to  the  civil  law  ;  and  the  application  of 
a  vendee  to  a  Court  of  Equity  to  rescind  a  contract  of  sale,  closely 
resembles  the  rescissory  action  of  the  civil  law  on  the  part  of  the 
buyer.  The  object  of  this  action  is  to  rescind  the  contract  of  sale, 
and  it  cannot  be  commenced  but  by  virtue  of  letters  of  rescission 
obtained  in  Chancery,  by  which  a  rescission  is  directed,  if  the  injury 
set  forth  by  the  buyer  shall  appear  to  the  Judge.  The  seller  must 
render  to  the  buyer  the  price  which  he  has  received,  upon  condition 
that  the  latter  render  him  the  estate  sold  ;  which  must  be  restoi-ed  in 
the  condition  in  which  it  was  found;  with  all  the  augmentations 
subject  to  the  contract,  whether  natural  or  alluvions,  or  artificial,  as 
buildings  erected  upon  the  land.  The  seller,  however,  must  make 
allowance  for  necessary  repairs  and  erections,  and  the  buyer  is  liable 
for  rents  and  profits.  Pothier  on  Contracts  of  Sale,  Part  5,  c.  2, 
§§  374,  381,  382.  The  duty  and  obligation  of  vendor  and  vendee,  do 
not  differ  essentially,  under  our  system  and  under  the  civil  law,  be- 


SPECIFIC   PERFORMANCE.  801 

cause  under  both  the  vendee  may  obtain  the  purchase-money  with 
interest,  and  must  restore  the  estate.  And  while  he  is  accountable 
for  rents  and  profits,  he  may  be  reimbursed  for  necessary  repairs  and 
erections,  and  also  for  taxes  and  assessments.  Reynolds  v.  Nelson, 
6  Mad.  19  ;  Hunter  v.  Geridy,  1  Ham.  449.  In  Murphy  v.  Officer,  8 
Yerg.  502,  it  was  held  that,  on  rescinding  the  contract,  the  purchaser 
was  bound  to  give  up  the  land  ;  and  until  he  did  so,  an  adverse  title 
in  himself,  procured  after  the  decree  of  rescission,  could  not  be  set  up 
by  him.  And  in  Fitzpatrick  v.  Featherstone,  3  Ala.  40,  it  was  ex- 
pressly held,  that  a  contract  for  the  sale  of  land  could  not  be  re- 
scinded, "where  the  purchaser  did  not  offer  to  return  the  land  to  the 
vendor.  It  may  therefore  be  asserted,  as  a  rule  well  sustained  by 
reason  and  authority,  that  if  the  vendee  has  gone  into  the  possession 
of  the  estate,  and  wished  to  rescind  the  contract,  he  must  give  fair 
notice  of  his  intention  to  do  so,  and  must  surrender,  or  offer  to  sur- 
render the  estate  to  the  vendor,  or,  in  case  of  death,  to  him  on  whom 
the  descent  is  cast.  He  has  no  right  to  abandon  it  to  the  mercy  of 
the  public  without  notice,  because  the  inevitable  consequence  would 
be  waste  and  dilapidation,  even  if  it  should  escape  a  sale  for  taxes, 
and  thus  pass  beyond  the  reach  of  vendor  and  vendee  forever.  And 
it  is  for  the  person  asking  for  the  exercise  of  this  highest  power  of  a 
Court  of  Equity  to  show  clearly,  that  he  can  restore  the  land  on 
rescission,  and  that  the  parties  can  be  placed  in  statu  quo,  and  it  is 
not  for  the  opposite  party  to  show  that  it  cannot  be  done.  1  S.  &  M. 
146." 

It  has  been  held  in  a  late  case,  that  a  vendee  cannot  rescind  the 
sale  for  fraud,  after  taking  possession,  and  after  the  expiration  of  ten 
years-  from  the  time  of  sale,  and  five  years  from  discovery  of  the 
fraud.     Davis  v.  Tarwater,  15  Ark.  286. 


Vol.  I.  p.  428.     Specific  Performance. 

With  regard  to  the  claim  for  specific  performance,  as  depending 
upon  the  want  of  an  adequate  remedy  at  law  ;  it  has  been  held  in  a 
late  English  case,  that  the  projectors  of  a  proposed  railroad  are  liable 

VOL.  II.  26 


302  APPENDIX. 

to  a  bill  for  specific  performance  of  a  contract  to  purchase  land, 
although  an  action  at  law  might  also  be  niaintain(;d  against  them. 
Eastern,  (Sec.  r.  llawkes,  35  Eng.  L.  &  Eq.  8.  In  the  course  of  his 
opinion,  Lord  Cranworth  refers  particularly  to  two  previous  cases, 
where  a  contrary  doctrine  was  said  to  liave  been  held  by  the  Court ; 
Webb  V.  The  Direct  London,  &c.  1  De  G.  Mac.  &  G.  521  ;  and 
Stuart  r.  The  London,  «&c.  lb.  72L  "In  the  former  of  these  cases 
the  Court  proceeded  on  two  grounds.  In  the  first  place,  the  terms  in 
which  the  deed  was  framed  were  such  as  to  lead  the  Court  strongly 
to  the  conclusion  that  the  whole  contract  was  meant  to  be  conditional 
on  the  line  l)eing  formed,  and  that  if  it  should  be  (as  in  fact  it  was) 
abandoned  by  its  projectors,  then  all  the  provisions  of  the  agreement 
were  to  fall  to  the  ground ;  a  construction,  I  may  observe,  which  re- 
ceives great  support  from  the  subsequent  case  of  Gage  v.  The  New- 
market, &c.  18  Q.  B.  Rep.  457.  But  independently  of  that  ditficulty, 
the  case  appeared  to  be  one  in  which  a  Court  of  Equity  ought  not  to 
interfere  in  favor  of  the  plaintiff,  for  that,  by  any  such  interference, 
we  should  be  doing  injustice  in  the  attempt  to  add  to  the  legal  remedy. 
The  injury  which  the  plaintiff  sustained  by  the  non-performance  of 
the  contract  was  this :  though  he  was  left  with  the  whole  of  his  land 
untouched,  he  lost  all  claim  to  the  £4,500,  and  might,  perhaps,  have 
sustained  damage  consequent  on  his  having  been  for  five  years  liable 
to  have  any  portion  of  it,  not  exceeding  eight  acres,  taken  by  the 
company  for  the  purpose  of  the  railway.  That  was  evidently  a  case 
for  compensation  by  action  for  damages,  and  not  for  relief  by  way  of 
specific  performance.  Indeed,  I  hardly  know  how  a  decree  for 
specific  performance  could  have  been  there  enforced,  for  no  particular 
eight  acres  had  been  contracted  for,  and  the  company  had  no  power 
to  select  eight  acres,  except  for  the  purpose  of  making  the  railway, 
the  power  to  make  which  had  long  since  ceased.  On  these  grounds 
the  Court  refused  to  interfere,  leaving  the  plaintiff  to  the  legal  rem- 
edy on   his  covenant. 

The  circumstances  of  Lord  James  Stuart's  case  were  similar  in 
principle.  The  only  or  principal  difference  between  this  latter  case 
and  that  previously  decided  was,  that  in  Lord  James  Stuart's  case 
there  was  no  contract  by  the  company  under  seal,  but  in  the  course 
of  the  argument  the  directors  offered  to  remove  all  difficulty  on  that 
head,  by  admitttng,  in  any  action  which  the  plaintiff  might  bring 
against  them,  that  they  had  by  deed,  under  seal,  covenanted  to  per- 


SPECIFIC   PERFORMANCE.  303 

form  any  contracts  entered  into  by  the  agent  of  the  projectors  before 
the  passiiijj;  of  the  act.  To  permit  the  phiintiff  to  remain  passive  till 
the  directors  could  not  have  any  use  for  the  land,  and  the  power  to 
make  the  line  liad  expired,  and  then  to  compel  them  to  select  and 
purchase  the  land,  would  be  to  make  the  extraordinary  interposition 
of  the  Court  ancillary  to  injustice  instead  of  justice. 

"  Here  there  is  no  uncertainty  as  to  the  subject-matter  of  the  pur- 
chase. The  vendor  did  not  sleep  on  his  rights,  and  wait  until  it  was 
impossible  for  the  purchaser  to  make  the  line.  On  the  contrary, 
from  the  very  day  on  which  the  contract  was  to  be  completed  he 
insisted  on  its  performance,  having  shortly  before  that  time  quitted 
possession  of  the  property,  and  within  less  than  five  months  after- 
wards he  filed  his  bill.  It  is  true  that  the  directors,  after  the  filing  of 
the  bill,  allowed  the  time  to  pass  within  which  they  were  bound  to 
complete  their  line.  But  the  plaintiff"  is  not  to  blame  for  that.  He 
did  not,  either  actively  or  passively,  mislead  the  defendants,  and  it 
would  be  impossible  to  hold  that  he  is  not  entitled  to  the  relief  that 
he  asks,  without  going  the  length  of  saying  that  no  vendor  of  an 
estate,  contracting  to  sell  to  a  railway  company,  can  ever  have  a 
decree  for  a  specific  performance  if  the  company  should  see  fit  after- 
wards to  abandon  the  undertaking,  with  a  view  to  which  the  contract 
was  made." 

Lord  Brougham  remarked  (p.  22)  :  "  If  these  cases  (above  I'e- 
ferred  to)  were  applicable  to  such  a  state  of  facts  as  those  which 
exist  in  the  present,  I  should  dissent  from  them,  and  consider  that 
they  do  not  give  the  law  of  the  Court  upon  the  subject  of  specific 
performance.  But  I  am  of  opinion  that  they  do  not  apply  to  the 
facts  of  this  case." 

Lord  Campbell  says  (p.  25)  :  "  Where  there  is  a  valid  executory 
agreement  for  the  sale  and  purchase  of  land,  there  can  be  no  doubt 
that  the  vendor  as  well  as  the  purchaser  is  prima  facie  entitled  to 
resort  to  a  Court  of  Equity  for  the  purpose  of  having  the  contract 
specifically  performed.  Generally  speaking,  pecuniary  damages  ade- 
quate to  the  pecuniary  loss  sustained  from  the  breach  of  the  contract 
would  be  an  indemnity  to  the  vendor ;  but  still,  damages  would  not 
place  him  in  the  same  situation  as  if  the  contract  had  been  performed, 
for  in  that  case  he  would  entirely  have  got  rid  of  his  land,  and  he 
would  have  in  his  pocket  the  net  sum  for  which  he  had  agreed  to  sell 
it ;  whereas  if  he  is  driven  to  his  action  at  law,  he  retains  the  land, 


304  APPENDIX. 

and  he  can  only  recover  the  difference  between  the  stipulated  price 
and  the  price  which  it  would  probably  fetch  if  resold,  together  with 
incidental  expenses,  and  any  special  damage  whicli  he  had  suffered. 
In  every  case  justice  requires  that  the  purchaser  should  be  entitled' 
to  specific  performance,  for  as  to  him  no  amount  of  damage  would 
necessarily  be  an  adequate  compensation  ;  and  there  must  be  re- 
ciprocity of  remedy  between  vendor  and  purchaser.  Indeed,  the 
remedy  must  necessarily  be  afforded  to  the  vendor  as  well  as  pur- 
chaser, from  the  well-known  doctrine  of  conversion  upon  the  signing  of 
a  valid  conti-act  for  the  sale  of  land,  the  equitable  estate  then  vesting 
in  the  purchaser,  and  the  vendor  then  holding  the  legal  estate  only 
as  his  trustee.  This  being  so,  the  onus  lies  upon  the  appellants  to 
show  that  the  respondent  was  not  entitled  to  a  decree  for  specific  per- 
formance. Here  the  objection  of  delay,  which  has  sometimes  very 
properly  prevailed,  cannot  be  taken,  and  it  cannot  be  contended  that 
the  vendor  has  lost  his  right  to  the  remedy  he  seeks  by  doing  any 
thing  which  he  ought  not  to  have  done,  or  by  omitting  to  do  any 
thing  which  he  ought  to  have  done  subsequently  to  the  date  of  the 
agreement,  with  good  faith  and  punctuality.  He  has  performed  his 
part  of  the  agreement ;  he  has  always  been  ready  and  willing  to 
complete  the  purchase,  and  he  has  urgently  and  earnestly  pressed  the 
company  to  complete  it." 

Upon  a  bill  for  specific  pei'formance,  inadequacy  of  consideration  is 
no  defence,  unless  so  great  as  to  raise  a  conclusive  presumption  of 
fraud.  Viele  v.  Troy,  &c.  21  Barb.  381.  It  is  said  by  the  Court 
(p.  389)  :  "  When  an  agreement  in  relation  to  real  estate  is  in  its 
nature  and  circumstances  unobjectionable,  and  the  contract  is  in  writ- 
ing, is  certain  and  fair  in  all  its  parts,  is  for  an  adequate  consideration, 
and  capable  of  being  performed,  it  is  as  much  a  matter  of  course  for 
a  Court  of  Equity  to  decree  a  specific  performance,  as  for  a  Court  of 
Law  to  give  damages  for  a  breach  of  it.  Indeed,  the  cases  are 
numerous  where  equity  has  enforced  contracts  for  the  breach  of 
which  no  action  for  damages  could  be  maintained  at  law.  The  case 
of  Seymour  v.  Delancy,  3  Cowen,  445,  is  in  point.  In  that  case  the 
vendor's  remedy  at  law  was  gone,  by  reason  of  there  being  a  mort- 
gage on  the  estate,  so  that  he  could  not  convey  a  good  title  at  the  day 
fixed  upon  by  the  contract,  yet  a  bill  for  specific  performance  was 
sustained.     In  equity,  the  leading  inquiry  is,  whether  in  conscience 


SPECIFIC   PERFORMANCE.  305 

the  contract  should  be  enforced  ;  and  mere  technical  objections  that 
would  defeat  an  action  at  law  for  damages  are  not  allowed  to  produce 
inequitable  and  oppressive  results." 

In  the  same  case  it  is  further  remarked  (p,  394):  "Whether  a 
Court  of  Equity  shall  decree  the  specific  performance  of  an  agree- 
ment, or  not,  is  a  matter  resting  in  its  discretion  ;  but  this  is  a  sound 
legal  discretion.  It  will  not  lend  its  aid  to  enforce  an  unconscientious 
contract.  The  case  presented  must  be  fair,  just,  and  reasonable  ;  the 
contract  free  from  fraud,  misrepresentation  or  surprise  ;  and  not  hard, 
unconscionable,  or  unequal.  It  must  also  be  entered  into  upon  ade- 
quate consideration  ;  and  wiiere  the  inadequacy  of  price  in  a  contract 
to  sell,  is  so  great  as  to  be  conclusive  evidence  of  fraud,  as  where  it 
would  shock  the  moral  sense  of  an  indifferent  man,  a  Court  of  Equity 
should  not  carry  it  into  effect.  But  inadequacy  of  price  merely, 
without  being  such  as  to  prove  fraud  conclusively,  the  contract  being 
entered  into  deliberately  and  fair  in  all  its  parts,  is  not  an  objection 
to  its  being  executed.  The  consideration  to  be  paid  for  the  land  was 
not  definitely  fixed  in  the  contract,  but  the  sura  submitted  to  men 
indifferently  chosen  by  the  parties.  A  majority  of  those  men  fixed 
the  price  to  be  paid  for  the  land,  and  that  sum  is  to  be  regarded  and 
treated  as  the  consideration,  as  though  it  were  named  in  the  agree- 
ment. It  seems  a  disproportionate  compensation.  But  is  there 
enough  in  the  case  to  show  that  the  price  was  so  inadequate  as  to 
shock  the  moral  sense,  and  be  conclusive  evidence  of  ffaud  ?  "VYe 
may  surmise  from  the  disproportion  between  the  value  of  the  whole 
farm,  and  the  price  fixed  as  the  consideration  for  the  small  part  in 
acres  taken  for  the  purposes  of  the  road,  that  the  defendants  were 
made  to  pay  pretty  dearly,  but  the  price  does  not  shock  the  moral 
sense,  as  it  may  be  that  that  part  of  the  farm  taken  was  worth  the 
sum  of  the  appraisal." 

The  following  decision  relates  to  the  claim  of  specific  performance 
in  a  doubtful  case,  (Vol.  I.  p.  434.)  Receipts  of  the  Comptroller 
Genei'al  for  part  of  the  purchase-money  were  offered  as  evidence  of 
the  sale  of  lands  by  the  State.  On  the  other  hand,  the  sheriff's  cer- 
tificate and  return  of  sale  were  not  produced  nor  accounted  for ;  one 
witness  testified,  that  to  his  recollection  the  alleged  purchaser  was  not 
present  at  the  sale  ;  and  the  answer  alleged  that  the  vendee  in  his 
life  denied  his  ownership.  Held,  the  balance  of  evidence  was  such 
26* 


306  APPENDIX. 

as  to  justify  the  Court  in  refusing  specific  performance.  Everett  v. 
Towns,  17  Geo.  15. 

In  addition  to  tliis  main  ground  of  the  decision,  Bcnning,  J.,  re- 
marks (p.  29)  :  "  Taking  the  bill  to  be  true,  tlie  compUiinants  need 
no  help  from  equity.  Their  Ie(/al  title,  they  say,  is  complete.  They 
say  the  legal  title  vested  in  Everett,  at  the  time  when  he  paid  the 
purchase-money  to  the  State.  If  so,  what  use  is  there  for  this  bill  ? 
None. 

"  And  I  may  say  for  myself,  that  I  know  of  nothing  that  gives  to  a 
Court  of  Equity  the  power  to  grant  the  prayer  of  this  bill.  Whence 
did  a  Court  of  Equity  get  the  power  to  nullify  an  act  of  one  of  the 
departments  of  government.  If  it  can  nullify  a  grant  made  by  the 
Executive  Department,  why  may  it  not  equally  nullify  a  commission 
issued  by  tiiat  department — a  military  order  made  by  that  depart- 
ment— in  a  word,  any  act  of  that  department  ?  If  it  can  do  things 
of  this  sort,  it  must  be  by  virtue  of  some  grant  of  power  to  it  in  the 
Constitution,  or  in  the  law.  I  know  of  no  such  grant.  Such  a  power 
English  Courts  of  Equity  do  not  pretend  to  have." 

Conformably  to  the  prevailing  rule,  (see  Vol.  I.  p.  435,  Vol.  II.  p. 
189,)  it  has  been  recently  held  in  New  Jersey,  that  specific  perform- 
ance will  not  be  decreed,  where  there  is  a  want  of  mutuality.  Stout- 
enburgh  v.  Tompkins,  1  Stockt.  332. 

Upon  this  ground,  the  assignee  of  a  bankrupt,  or  one  claiming 
under  him,  cannot  maintain  a  bill  for  specific  performance,  unless  he 
affirm  the  contract  and  make  it  mutual  in  reasonable  time.     lb. 

The  Chancellor  (p.  342)  gives  the  following  view  of  the  decisions 
upon  this  subject:  "A  want  of  mutuality  is  an  objection  to  a  decree 
for  specific  performance  in  this  case.  Let  us  see  how  far  the  Court 
has  carried  this  objection.  In  the  case  of  Hatton  v.  Gray,  2  Cha. 
Ca.  164,  Hatton  sold  houses  to  Gray  for  two  thousand  pounds.  The 
note  of  the  agreement  was  signed  by  Gray  only.  The  solicitor 
said  in  argument :  '  The  note  binds  not  him  who  signed  it  not,  for 
the  Statute  of  Frauds  and  Perjuries,  «fec.,  and  therefoi'e  in  equity 
cannot  bind  the  other  party,  for  both  must  be  bound  or  neither  of 
them,  in  equity.'  But  it  was  decreed  contrary.  Armingar  v.  Clarke, 
Bunbury's  Rep.  110.  The  bill  was  dismissed  per  totam  curiam, 
chiefly  upon  the  principle,  that  the  remedy  was  not  mutual.  In 
Owen  V.  Davies,  1  Ves.  82,  the  bill  was  for  the  specific  performance 


SPECIFIC   PERFORMANCE.  307 

of  an  agreement  with  one  since  become  a  lunatic,  for  the  sale  of  a 
reversion  upon  an  estate  for  life.  It  is  apparent  from  the  rei)ort  of 
the  case,  that  the  defence  insisted  on  was,  that  the  remedy  was  not 
mutual,  because  the  rights  of  the  parties  were  altered  on  account  of 
this  change  in  the  condition  of  one  of  the  parties.  The  Lord  Chan- 
cellor did  not  deny  the  principle  contended  for.  He  said  :  '  It  is  cer- 
tain, that  the  change  of  the  condition  of  a  person  entering  into  an 
agreement,  by  becoming  lunatic,  will  not  alter  the  rights  of  the  par- 
ties, which  will  be  the  same  as  before,  provided  they  can  come  at  the 
remedy.  As  if  the  legal  estate  is  vested  in  trustees,  a  Court  of  Equity 
ought  to  decree  a  performance  ;  and  the  act  of  God  should  not  change 
the  rights  of  the  parties  ;  but  if  the  legal  estate  be  vested  in  the 
lunatic  himself,  that  may  prevent  the  remedy  in  equity,  and  leave  it 
at  law,'  In  1  Atk.  2,  (Stapilton  v.  Stapilton,)  the  general  rule  was 
admitted.  The  mutuality  was  destroyed  by  the  act  of  God.  The 
agreement  was  such  that  both  parties  run  this  same  risk.  The  Lord 
Chancellor  said :  '  The  chance  was  equal,  who  died  first,  Henry  or 
Philip.'  In  1  Schoales  &  Lafroy,  18,  (LaAvrenson  v.  Butler,)  Lord 
Chancellor  Redesdale  is  for  adhering  to  the  rule,  as  to  mutuality,  most 
rigidly.  He  remarks  in  that  case:  'It  is  said  that  Courts  of  Equity 
have  decreed  performance  in  cases  where  one  party  only  was  bound 
by  the  agreement.  I  believe  it  would  be  difficult  to  find  a  case  where 
that  has  been  done,  particularly  a  late  case.  In  the  case  of  Hatton 
V.  Gray,  2  Ch.  Cas.,  it  was  considered  as  sufficient  that  the  agi-eement 
should  be  signed  by  the  pai'ty  against  whom  the  performance  was 
sought,  because  such  are  the  words  of  the  Statute  of  Frauds  ;  now, 
such  certainly  is  the  import,  that  no  agreement  shall  be  in  force  but 
when  it  is  signed  by  the  party  to  be  charged ;  but  the  statute  does 
not  say  that  every  agreement  so  signed  shall  be  enforced ;  the  statute 
is  in  the  negative.  But  this  dictum  of  Lord  Redesdale,  that  an  agree- 
ment signed  by  one  party  only,  cannot  be  enforced  against  that  party, 
is  not  law.  Since  this  case  in  Schoales  &  Lefroy,  it  has  frequently 
been  otherwise  decided.  The  Master  of  the  Rolls,  in  2  Jacob  & 
Walker,  428,  (Martin  v.  Mitchell,)  seems  to  think  that  the  party  who 
had  signed,  had  a  locus  penitentice,  and  was  at  liberty  to  recede  until 
the  other  had  signed,  or  in  some  manner  made  it  binding  upon  him- 
self. In  the  case  of  Flight  v.  Bolland,  4  Russ.  675,  it  was  decided 
that  an  infant  cannot  sustain  a  suit  for  the  specific  performance  of  a 
contract,  because  the  remedy  is  not  mutual.     But  in  Clayton  v.  Ash- 


308  APPENDIX. 

down,  2  Vin.  393,  pi.  1,  a  specific  performance  (of  a  contract)  made 
by  an  infant  was  decreed,  on  the  ground  that  the  infant  liad  attained 
his  full  age,  and  had  allirmed  the  contract  before  the  bill  was  filed. 
In  the  cases  already  referred  to,  where  the  suits  were  maintained  on 
agreements  signed  only  by  one  party,  it  was,  as  was  remarked  by  the 
Master  of  tiie  Rolls,  in  4  Russell,  first  because  the  Statute  of  Frauds 
only  requires  the  agreement  ^o  be  signed  by  the  party  to  be  charged  ; 
and  next,  it  is  saiil  that  the  plaintiff  by  the  act  of  filing  the  bill,  has 
made  the  remedy  mutual.  From  a  review  of  all  the  authorities,  it 
will  appear  to  be  an  objection  to  decreeing  a  specific  performance, 
that  the  parties  are  not  mutually  bound  to  fulfil  it,  and  that  the  Court 
will  not  enforce  such  a  contract,  when  the  party  who  is  not  bound  by 
the  agreement,  has  taken  an  undue  advantage  of  his  position,  to  the 
injury  of  the  other  pai'ty.  For  instance,  if  an  infant  may  make  a 
contract  mutual  by  affirming  it  after  he  comes  of  age  ;  if  the  property 
is  of  a  character  subject  to  fluctuation  in  its  value,  the  Court  would 
not  allow  him  to  speculate  upon  his  position,  and  take  his  own  time  to 
affirm  the  contract.  A  want  of  diligence  might,  under  such  circum- 
stances, be  sufficient  ground  for  the  Court's  refusing  its  aid.  To  apply 
the  rule  to  the  case  before  us.  This  contract  is  mutual  in  its  terms, 
and  there  is  a  mutuality  of  remedy  to  the  parties.  The  one  agrees 
to  sell  at  a  fixed  price,  and  the  other  covenants  to  give  it.  If  either 
party  had  died,  the  mutuality  of  remedy  would  not  have  been  de- 
stroyed. The  representatives  of  the  deceased  party  would  have  been 
bound  to  fulfil  the  contract,  or  if  Wilde  had  sold  and  assigned  his 
interest,  Tompkins  could  still  have  enforced  the  agreement  against 
Wilde.  But  the  moment  Wilde's  interest  in  this  contract  passed  into 
the  hands  of  his  assignee  in  bankruptcy,  all  reciprocity  as  to  the 
remedy  was  destroyed.  I  am  not  willing,  however,  to  say,  that  the 
mere  fact  of  the  mutuality  being  destroyed  under  these  circumstances, 
the  Court,  .on  that  account  should  refuse  its  aid  to  enforce  a  specific 
performance.  Such  an  application  of  the  rule  might  contravene  the 
policy  of  the  bankrupt  law,  by  depriving  the  creditors  of  a  beneficial 
interest  in  a  valuable  part  of  the  bankrupt's  estate.  But  if  the 
assignee,  or  a  person  holding  under  him,  seeks  a  specific  performance, 
he  must  affirm  the  contract  and  make  it  mutual,  at  least  within  a 
reasonable  time.  If  he  takes  advantage  of  his  position  to  speculate 
upon  the  opposite  party,  a  Court  of  Equity  will  not  encourage  or  aid 
him  in  such  speculation.     By  the  terms  of  the  agreement  in  question, 


SPECIFIC  PERFORMANCE.  309 

Wilde  was  entitled  to  a  conveyance  of  the  property  on  his  paying  the 
consideration-money,  at  any  time,  on  or  before  the  4th  of  February, 
1846.  The  assignee  came  into  the  possession  of  the  contract  July 
16,  1842.  He  took  no  steps  towards  assuming  its  x'esponsibilities,  or 
enforcing  its  fulfilment,  but  ten  months  afterwards  sold  at  public 
auction  all  his  right,  title,  and  interest  in  it,  to  the  complainant  for 
three  dollars  and  seventy-five  cents.  What  was  the  relative  situation 
of  the  complainant  and  the  defendant  all  this  time.  Here  was  an 
agreement  which  the  defendant  could  enforce  against  no  one.  It 
related  to  property,  fi'ora  its  very  character  fluctuating  in  its  value. 
Could  the  complainant  rest  upon  his  oars  until  February,  1846  ;  then, 
if  in  the  mean  time  the  property  doubled  in  value,  demand  it  at  his 
pleasure,  of  the  defendant ;  or  if  it  became  valueless,  be  at  liberty  to 
cast  it,  a  burden  upon  him,  without  any  means  of  redress  for  such  a 
wrong  ?  And  all  this  without  any  negligence,  or  want  of  foresight  in 
the  defendant.  The  contract  was  made  before  the  bankrupt  law  was 
passed,  and  of  course  the  defendant  could  not  anticipate,  and  there- 
fore did  not  provide  against  such  a  contingency.  Would  it  be  equita- 
ble under  such  circumstances,  for  this  Court  to  countenance  the  com- 
plainant in  taking  advantage  of  his  position,  and  in  speculating  upon 
the  defendant ;  and  more  especially,  when  he  risks  only  three  dollars 
and  seventy-five  cents  in  the  adventure.  The  complainant  waited 
until  the  7th  of  October,  1845,  about  four  months  before  the  time 
for  executing  the  contract  expired,  and  for  more  than  three  years 
after  his  purchase,  and  then  formally  tendered  himself  ready  to 
assume  its  responsibilities.  In  the  mean  time  the  property  increased 
some  fifty  per  cent  in  value." 

Upon  the  question  o^  jurisdiction,  (see  Vol.  I.  p.  430,)  it  has  been 
held,  that  the  Court  in  New  York  may  compel  specific  performance  of 
a  contract  respecting  lands  in  Illinois.  Newton  v.  Bronson,  3  Kern. 
587.  Denio,  C.  J.,  says  (p.  591)  :  "The  contract  was  for  the  pur- 
chase of  lands  lying  in  the  State  of  Illinois,  but  the  parties  are  resi- 
dents of  this  State,  and  subject  generally  to  the  jurisdiction  of  its 
courts.  The  defendant's  counsel  insists  that  the  Court  below  had  no 
jurisdiction  in  such  a  case  to  decree  a  specific  performance.  It  is  not 
denied  but  that  such  a  jurisdiction  existed  in  the  Court  of  Chancery, 
nor  but  that  it  passed  to  the  Supreme  Court  by  the  provisions  of  the 
present  constitution.     That  concession  could  not  be  avoided  consist- 


310  APPENDIX. 

ently  with  a  settled  course  of  adjudication.  (Massie  v.  Watts,  6 
Crunch,  148  ;  Shattuck  v.  Cassidy,  3  Edw.  C.  R.  152  ;  AVard  v.  Arre- 
doiulo,  1  Ilopk.  C.  R.  213  ;  Mead  v.  Merritt,  2  Paige,  402 ;  Mitchell 
V.  Bunch,  Id.  006  ;  Sutphen  v.  Fowler,  9  Id.  280.)  The  cases  in  the 
English  Court  of  Chancery  will  be  found  referred  to  by  Chancellor 
Walworth  in  the  last  of  these  cases.  The  doctrine  thus  established 
is,  that  this  Court  having  jurisdiction  of  the  person  of  the  defendant, 
will,  by  its  process  of  injunction  and  attachment,  compel  him  to  do 
justice,  by  the  execution  of  such  conveyances  and  assurances  as  will 
affect  the  title  of  the  property  in  the  jurisdiction  within  which  it  is 
situated." 

A  petition  for  specific  performance,  brought  upon  a  bond  for  title, 
is  demurrable,  unless  it  allege  a  breach  or  non-performance  of  the 
condition.  Holman  v.  Criswell,  13  Tex.  38.  The  Court  remark 
(p.  42)  :  "  This  action,  if  brought  in  Courts  where  there  is  a  distinc- 
tion between  Law  and  Equity,  would  have  been  prosecuted  in  a  Court 
of  Equity.  But  there  is  no  material  difference,  in  substance,  in  the 
certainty  with  which  the  grounds  of  complaint  must  be  set  forth, 
whether  the  action  be  instituted  in  the  one  forum  or  the  other.  In 
Equity,  the  bill  must  state,  not  only  the  right,  title,  or*claim  of  the 
plaintiff,  with  accuracy  and  clearness,  but  also  tlie  injury  or  grievance 
of  which  he  complains,  or  in  other  words,  in  cases  such  as  the  one 
before  the  Court,  the  breach  or  non-performance  of  his  obligations  on 
the  bond.  In  the  nature  of  things,  there  can  be  no  cause  of  action 
where  no  injury  has  been  done.  The  invocation  of  the  remedial  aid 
of  a  Court  necessarily  presupposes  the  infliction  of  some  wrong  for 
which  redress  is  sought,  and  this  wrong  must,  as  a  matter  of  course, 
be  stated  in  all  Courts  where  the  formality  of  pleading  is  required ; 
and  if  it  be.  not  averred,  no  such  case  is  made  as  entitles  the  com- 
plainant to  the  interposition  of  the  Court. 

"  The  only  difficulty  in  holding  that  the  averment  of  breach  is  in 
all  cases  an  essential  portion  of  the  statement  of  the  cause  of  action, 
consists  in  this,  that  in  some  cases,  it  is  not  incumbent  on  the  plaintiff 
to  prove  the  breach  or  non-performance  of  the  contract  or  covenant. 
Its  execution  being  established  and  its  maturity  passed,  its  breach 
will  be  presumed.  As  a  general  rule  the  plaintiff  cannot  be  com- 
pelled to  assert  more  facts  than  on  a  general  denial  he  would  be 
bound  to  prove.     But  the  plaintiff  must  allege  such  facts,  as  would, 


SPECIFIC   PERFORMANCE.  311 

were  they  admitted  to  be  true,  entitle  him  to  a  judgment ;  and  this 
certainly  he  could  not  demand,  unless  he  complained  that  some  wrong 
or  injury  had  been  done  him,  or  that  some  right  had  been  withheld." 

In  a  bill  for  specific  performance  of  a  parol  agreement,  the  defend- 
ant may  rely  upon  the  Statute  of  Frauds,  though  he  admits  the 
agreement.  Otherwise,  in  case  of  such  admission,  where  he  does  not 
insist  upon  the  statute.  Dean  v.  Dean,  1  Stockt.  425.  (See  Vol.  I. 
p.  452.) 

A  decree  for  specific  performance  against  a  vendor  is  not  a  Judicial 
sale,  and  a  purchaser  from  either  party  is  chargeable  with  notice  of 
all  involved  in  the  suit,  as  a  purchaser  j}ende7ite  life.  Gilman  v.  Ham- 
ilton, 16  111.  225.  The  Court  say  (p.  232)  :  "  It  is  true,  as  a  general 
I'ule,  that  an  innocent  purchaser,  without  notice,  under  an  erroneous, 
voidable,  or  even  fraudulent  decree  or  judgment,  is  entitled  to  protec- 
tion, whether  collaterally  or  directly  attacked,  by  i"eversal  or  writ  of 
error.  This  is  a  sound  policy,  and  necessary  for  the  assurance  and 
protection  of  the  public ;  for  while  the  doctrine  of  caveat  emptor 
applies  to  these  sales  as  to  the  title  of  property,  the  risk  should  not 
be  increased^y  including  in  it  the  validity  of  the  decree  or  judgment 
against  all  allegations  of  error.  Of  course,  no  title  can  be  derived 
through  or  under  a  void  judgment  or  decree.  Is  Illinois  College,  or 
Coffin  either,  such  a  purchaser  ?  And  had  they  no  notice  ?  I  am  of 
opinion  they  were  not.  The  bill  did  not  seek  a  sale,  and  no  sale  was 
decreed ;  no  sale  was  necessary  to  the  full  execution  of  that  decree, 
and  none  was  made  under  it.  It  was  a  simple  transfer.  There  was 
no  judicial  sale  or  purchase,  in  the  sense  of  the  authorities  on  the 
subject.  Where  a  bill  is  filed  for  specific  performance  by  a  transfer 
of  land  or  property  fx'om  vendor  to  vendee,  a  decree  for  that  purpose 
is  not  a  judicial  sale ;  it  is  rather  a  specific  execution  of  a  former, 
than  the  making  of  a  new  sale ;  under  such  circumstances,  any  one 
purchasing  from  either  party,  is  chargable  with  notice  of  all  that  is 
involved  in  the  suit,  as  a  lis  pendens,  and  its  ultimate  effects  and  con- 
sequences upon  the  property  and  the  rights  and  powers  of  the  par- 
ties. Ace.  Talbott  v.  Bell,  5  B.  Mon.  323 ;  Clary  v.  Marshall,  4 
Dana,  99 ;  DeWitt  v.  Foxworthy,  9  B.  Mon.  220  ;  Madison  v.  Hop- 
kins, 1.2,  600." 


312  APPENDIX. 


Vol.  II.  p.  1.     Action. —  Title. — Mutuality,  etc. 

It  has  been  recently  held,  that,  where  one  party  is  to  make  a  deed 
and  the  other  pay  the  purchase-money,  an  unconditional  tender  by 
the  latter  is  not  requisite.  (See  Vol.  I.  p.  35,  Vol.  II.  pp.  55,  197.) 
An  offer  to  pay  and  a  demand  of  performance  is  sufficient,  if  perform- 
ance is  refused  and  the  money  brought  into  Court  at  the  time  of  trial. 
More  especially  if  in  consequence  of  continued  possession,  an  account 
of  rents  and  profits  is  necessaiy,  to  determine  what  amount  shall  be 
tendered.  Henry  v.  Raiman,  25  Penn.  354.  The  Court  (p.  361) 
make  the  following  distinction  :  "Where  a  debt  is  due  on  a  contract 
executed,  and  the  creditor  is  entitled  to  it  without  the  performance  of 
any  thing  on  his  part,  an  actual  tender  is  required,  and  must  be  kept 
good  by  bringing  the  money  into  Court  and  pleading  the  tender,  at 
an  early  stage  of  the  cause,  with  an  averment  of  ^tout  temps  prist.' 
But  this  is  not  necessary  where  the  agreement  is  executory,  and  the 
acts  of  the  parties  are  to  be  concurrent ;  as  where  one  is  to  make 
a  deed  and  the  other  to  pay  the  purchase-money.  In  such  case  an 
unconditional  tender  is  not  required.  It  is  sufficient  for  the  plaintiff, 
in  order  to  put  the  opposite  party  in  default,  so  that  an  action  may  be 
maintained,  to  show  that  he  was  ready  and  willing  to  pay  the  money, 
on  receiving  the  considex'ation  to  which  he  is  entitled." 

Bill  for  specific  performance.  The  plaintiff  agreed  with  the  de- 
fendant to  buy  certain  land,  pay  therefor  a  certain  sum  of  money,  and 
perform  certain  work,  within  a  specified  time.  The  money  was  paid, 
but  the  work  was  not  completed  nor  was  there  any  offer  to  complete 
it,  although  the  defendant  did  nothing  to  prevent  it.  Bill  dismissed. 
Denniston  v.  Coquillard,  5  McL.  253.  The  Court  say  (p.  255)  : 
"  This  is  not  a  case  where  compensation  can  be  made  for  the  failure 
to  perform.  Where  a  sum  of  money  is  to  be  paid,  and  there  are  no 
changes  in  the  subject-matter  of  the  contract,  to  prevent  a  specific 
execution  of  it,  it  may  be  decreed,  and  interest  on  the  deferred  pay- 
ment is  held  to  be  a  compensation  for  the  delay.  But  in  the  case 
before  us,  if,  by  the  nature  of  the  contract,  the  dam  and  the  race 
might  be  completed,  after  the  expiration  of  the  year  extension,  yet 
they  must  be  completed  before  a  conveyance  of  the  land  conld  be 
required.     Courts  of  Equity  can  neither  make  contracts  for  parties 


ACTION. — TITLE. — MUTUALITY,    ETC.  313 

nor  modify  them,  to  suit  the  convenience  and  interest  of  one  of  the 
parties.  It  would  be  difficult,  if  not  impracticable,  to  ascertain  what 
damage  Coquillard  suffered  by  the  non-performance  of  the  complain- 
ants. He  is  shown  to  be  insolvent,  and  this  may  have  resulted  from 
their  failure.  To  obtain  a  specific  performance,  the  individual  seek- 
ing it  must  show  vigilance  on  his  part.  He  must  prove  that  he  has 
performed  his  contract,  or  offered  to  perform  it,  and  was  prevented 
by  the  defendant." 

A  vendor  may  require  payment  of  the  price  before  delivering  the 
deed.     Salmon  v.  Hoffman,  2  Cal.  138. 

A  purchaser  by  title-bond,  evicted  in  consequence  of  his  vendor's 
failing  to  pay  the  original  vendor,  may  at  any  time  recover  the  money 
paid  by  him.     Hurst  v.  Means,  2  Sneed,  546. 

Where  a  vendor  was  unable  to  make  title  to  a  part  of  the  land 
which  formed  the  principal  mducement  to  the  purchase ;  held,  not  a 
case  for  mere  deduction  from  the  price,  but  for  entire  rescission.  York 
V.  Gregg,  9  Tex.  85. 

A  vendee  who  pays  part  of  the  price,  but  refuses  to  complete  the 
contract,  forfeits  the  sum  paid  ;  and  the  vendor  may  recover  the  land. 
Estes  V.  Browning,  11  Tex.  237. 

A  vendee,  retaining  the  bond  for  title  and  possession  of  the  land, 
cannot  resist  payment  of  the  price.     Lynch  v.  Baxter,  4  Tex.  431. 

In  Dwight  V.  Cutler,  3  Mich.  575,  upon  the  question  how  far  a 
vendor  is  bound  by  his  contract  to  convey  a  perfect  title  to  the  ven- 
dee, the  Court  say :  "  Such  acceptance  created  an  agreement  between 
the  parties  by  which  the  plaintiff  simply  engaged  to  sell,  and  the  de- 
fendant to  purchase  the  premises,  on  the  terms  specified,  nothing  being 
said  about  the  title  or  the  covenants  which  should  be  contained  in  the 
deed  by  which  they  should  be  conveyed.  The  plaintiff  tendered  a 
deed  of  the  premises,  with  covenants  against  her  own  acts  merely, 
which  she  claimed  was  a  compliance  with  this  contract.  The  defend- 
ant refused  to  receive  this  deed  and  execute  a  mortgage  for  the  pui-- 
chase  money,  on  the  ground,  first,  that  as  he  alleged,  the  premises 

VOL.  II.  27 


314  APPENDIX. 

were  incumbered ;  and  secondly,  because  the  deed  did  not  contain  the 
usual  covenants  of  seizin,  against  incumbrances,  and  of  general  war- 
ranty. No  doubt  the  contract  bound  the  plaintiff  to  make  a  good 
title.  She  agreed  to  sell  the  premises,  not  to  execute  a  deed  of  what- 
ever title  she  had  to  thcra.  And  in  every  contract  for  the  sale  of 
land,  unless  the  contrary  intention  is  expressed,  there  is  an  implied 
undertaking  on  the  part  of  the  vendor,  available  at  law  as  well  as  in 
equity,  while  the  contract  remains  executory,  to  make  out  a  good  title 
clear  of  all  defects  and  incumbrances.  (Rawle  Co.  for  Tit.  430,  et 
seq.;  Senter  v.  Drake,  5  Barn.  &  Ad.  992;  Sharin  v.  Fickling,  2 
Rich.  361  ;  Breithaupt  v.  Thurmond,  3  lb.  216;  Creigh  v.  Shatto,  9 
Watts  &  Serg.  82;  in  the  matter  of  Humber,  1  Ed.  Ch.  R.  1  ;  Hall 
V.  Betty,  4  Man.  &  Gr.  410 ;  Purvis  v.  Rayer,  9  Price,  488  ;  Pome- 
roy  V.  Drury,  14  Barb.  S.  C.  R.  418 ;  Hunter  v.  O'Neil,  12  Ala.  37 ; 
Greenwood  v.  Ligon,  10  S.  &  M.  615 ;  Owings  v.  Baldwin,  8  Gill, 
337.)  It  does  not  appear  in  the  present  case  whether  the  plaintiflf 
had  a  good  title  or  not,  but  only  that  the  defendant  made  certain  ob- 
jections to  the  title  when  a  deed  was  tendered  to  him.  The  rule  in 
England,  where  titles  are  not  registered,  unquestionably  is,  that  the 
vendor  in  such  a  contract,  in  order  to  show  performance,  or  an  offer 
to  perform  on  his  part,  whether  in  an  action  at  law  for  the  purchase- 
money,  or  in  a  suit  in  equity  to  compel  specific  performance,  must 
prove  affirmatively  that  he  has  a  good  title.  But  it  would  seem  that 
in  this  country,  where  titles  are  recorded,  and  at  all  times  open  to  the 
inspection  of  both  parties,  a  different  rule  prevails.  It  has  been 
assumed  in  many  cases  of  actions  by  the  vendor  to  recover  the  pur- 
chase money,  (among  others,  see  Little  v.  Paddleford,  13  N.  H.  167, 
and  Feemster  v.  May,  13  Sm.  &  Marsh.  272,)  and  was  expressly 
decided  in  Brethaupt  v.  Thurmond,  3  Rich.  S.  Car.  R.  216  ;  Brown  v. 
Bellows,  4  Pick.  179, 193,  that  the  vendor  might  rely  upon  his  tender 
of  a  deed  without  producing  the  evidence  of  his  title,  the  burden 
being  on  the  purchaser  to  show  such  a  defect  in  the  title  as  would 
justify  him  in  refusing  to  accept  the  deed.  See  also  Espy  v.  Ander- 
son, 2  Harr.  (Penn.)  R.  308.  We  think  this  a  safe,  reasonable,  and 
convenient  rule,  and  in  accordance  with  the  general  understanding  of 
the  profession  in  this  country.  And  although  there  may  be  differ- 
ences of  opinion  as  to  the  ground  on  which  it  should  be  made  to  rest, 
we  are  inclined  to  adopt  it,  and  to  hold  that  in  the  absence  of  any 
finding  to  the  contrary,  we  must  assume  that  the  plaintiff  in  this  case 


ACTION. — TITLE. — MUTUALITY,   ETC.  315 

tendered  a  good  title  to  the  defendant.  The  only  remaining  inquiry 
under  this  head  is,  whether  the  deed  tendered  by  the  plaintiff  contain- 
ing covenants  against  her  own  acts  only,  was  such  as  the  contract 
required.  We  think  it  may  be  laid  down  as  a  general  rule,  that  in 
every  contract  for  the  sale  of  lands,  the  vendor,  unless  he  acts  in  a 
mere  ministerial  or  fiduciary  capacity,  or  there  is  something  in  the 
terms  of  the  contract,  or  attendant  circumstances,  which  shows  a 
contrary  intention,  impliedly  engages  not  merely  as  we  have  before 
said,  to  give  a  good  title,  but  also  to  convey  by  a  deed  containing  the 
usual  covenants.  This  has  always  been  the  settled  law  in  England, 
and  we  think  is  in  accordance  with  the  general  understanding  of  the 
parties  to  such  contracts.  In  England,  the  usual  covenant  of  war- 
ranty on  a  conveyance  of  real  estate  is  a  covenant  against  the  ven- 
doz-'s  own  acts  merely,  except  in  cases  where  the  vendor  does  not 
claim  by  purchase  in  the  popular  signification  of  that  term,  in  which 
case  the  covenant  extends  to  the  acts  of  the  last  person  who  thus 
claimed  by  purchase,  and  accordingly  such  limited  covenant  is  there 
held  sufficient.  But  as  has  been  well  said  by  Mr.  Rawle  in  his  re- 
cent work  on  Covenants  for  Title,  (p.  559,)  owing  to  various  causes, 
the  practice  of  conveyancing  differs  widely  on  the  opposite  sides  of 
the  Atlantic.  It  is  obvious,  moreover,  that  many  of  the  usages  of 
conveyancing  which  prevail  where  the  state  of  society  has  for  a  long 
time  been  permanent,  the  titles  old,  and  to  a  greater  or  less  extent 
carefully  examined  at  every  purchase,  lose  their  application  in  a  com- 
paratively new  country.  The  same  covenants  which  might  satisfy  a 
purchaser  in  England  or  Massachusetts,  might  not  satisfy  a  purchaser 
in  Texas  or  California.  As  precision  of  conveyancing  increases  with 
the  steady  rise  of  property,  and  as  the  titles  become  better  known,  a 
purchaser  is  less  anxious  for  general  covenants  than  where  he  buys  in 
comparative  ignorance  of  the  title,  and  relies  on  such  covenants  for 
protection.  Hence,  the  greatest  difference  will  be  found  to  exist  be- 
tween the  law  and  practice  on  this  point  not  only  on  the  different 
sides  of  the  Atlantic,  but  between  different  States.  In  Pennsylvania, 
the  Supreme  Court  have  laid  it  down  as  a  general  rule,  that  a  pur- 
chaser has  no  right  to  expect  covenants  of  greater  scope  than  against 
the  acts  of  the  vendor  and  his  heirs,  and  that  an  agreement  to  con- 
vey by  warranty  deed,  means  in  popular  phrase,  a  deed  with  special 
warranty.  (Witters  v.  Baird,  7  Watts,  229  ;  Espy  v.  Anderson,  2 
Har.  312.)    Mr.  Rawle  expresses  the  opinion  that  in  the  larger  towns 


316  •        APPENDIX. 

of  that  State,  such  is  the  only  express  covenant  for  title  usually  in- 
serted in  conveyances.  In  Kentucky,  it  was  Iield  from  an  early  day, 
to  be  both  the  settled  rule  and  practice  in  that  State,  that  unless  where 
there  was  a  special  contract  to  the  contrary,  a  covenant  of  general 
warranty  must  be  given,  and  such  seems  still  to  be  the  rule.  (Flem- 
ing V.  Harrison,  2  Bibb,  171 ;  Vanada's  Heirs  v.  Hopkins,  1  J.  J. 
Marsh.  293  ;  Hedges  v.  Kerr,  4  B.  Mon.  528.)  So  in  Indiana,  a 
bond  conditioned  '  for  making  a  lawful  title,'  was  held  to  require  a 
general  warranty.  (Clark  v.  Redman,  1  Blackf.  379.)  So  where  in 
Ohio  it  was  said  (Tremaine  v.  Lining,  Wright,  644,)  that  '  a  contract 
for  a  good  and  sufficient  deed,  means  a  deed  with  a  covenant  of  war- 
ranty,' it  is  presumed  that  a  general  warranty  is  meant.  So  in  Vir- 
ginia, it  was  held  in  Rucker  v.  Lowther,  (6  Leigh,  259,)  that  where 
L.,  attorney  for  C,  covenanted  to  sell  and  convey  land  to  B.  according 
to  a  power  of  attorney  given  him  by  C. ;  this  was  a  covenant  for  a 
conveyance  by  C.  with  general  warranty,  unless  the  power  of  attor- 
ney referred  to  in  the  covenant,  confined  the  attorney  to  a  special 
warranty,  and  it  was  shown  to  the  purchaser  at  the  time  of  the  con- 
tract, or  its  contents  fairly  and  fully  stated  to  him.  But  see  Penning- 
ton V.  Hanley,  4  Munf.  140  ;  Fuller  v.  Hubbard,  6  Cow.  13.  No 
doubt  it  is  the  general  usage  in  this  State,  and  probably  in  most  of 
the  Western  States,  to  convey  land  by  deeds  containing  the  covenant 
of  general  warranty,  upon  the  principle  that  an  agreement  to  convey, 
where  there  is  nothing  to  show  a  contrary  intention,  gives  a  right  to 
the  usual  covenants  for  title.  We  think  the  plaintiff  was  bound  in 
the  present  case  to  convey  by  a  deed  containing  a  general  warranty ; 
and  that  the  conveyance  tendered,  which  contained  a  covenant  against 
her  own  acts  merely,  was  not  a  compliance  with  her  contract." 


Vol.  II.  p.  97.      Use  and  Occupation. 

Bond  to  convey  certain  premises  to  the  plaintiff,  upon  payment  by 
him  of  a  note  on  demand,  and  interest  quarterly,  and  in  the  mean 
time  allow  him,  his  heirs,  and  assigns,  the  peaceable  and  quiet  posses- 


USE  AND   OCCUPATION.  31Y 

sioh  of  the  premises,  until  said  conveyance  should  be  made.  The 
plaintiff  regularly  paid  interest  on  the  note  as  it  fell  due,  and  both 
parties  treated  the  payment  as  rent ;  and  the  principal  had  never 
been  demanded  by  the  obligor,  nor  paid.  In  an  action  of  trespass  for 
removing  the  plaintiff  from  the  premises,  the  defendants  justified 
under  a  deed  from  the  obligor  subsequent  to  the  bond,  and  a  notice  to 
the  plaintiff  before  the  act  complained  of.  Held,  the  action  was 
maintainable.  Metcalf,  J.,  says  (in  substance)  :  "  The  legal  effect  of 
the  condition  of  the  bond  was  a  demise  of  the  premises,  so  long  as 
he  should  pay  the  interest  quarterly  and  should  not  fail  to  pay  the 
principal  on  demand.  His  rights  under  the  demise  continued  at  the 
time  of  Brown's  conveyance  of  the  premises  to  the  defendants.  Not 
being  tenant  at  will,  when  that  conveyance  was  made,  his  tenancy 
was  not  thereby  terminated."     White  v.  Livingston,  10  Cush.  259. 

Where  a  sale  is  rescinded,  the  vendee  is  not  hable  as  a  lessee,  but 
only  for  the  amount  to  which  he  has  been  benefited  by  occupying  that 
part  of  the  land  which  belonged  to  the  vendor ;  allowance  being  made 
for  improvements,  including  those  made  on  land  by  mistake,  repre- 
sented to  have  been  conveyed  to  him.  Coffman  v.  Huck,  19  Mis.  435. 
The  Court  say  (p.  440)  :  "  The  weight  of  the  English  and  American 
authox-ity  is,  that  when  one  takes  possession  under  a  contract  to  convey, 
he  does  not  thex'eby  create  the  relation  of  landlord  and  tenant  be- 
tween the  vendor  and  himself,  and  that  an  action  for  use  and  occupa- 
tion will  not  lie  against  him,  until  there  has  been  an  abandonment  of 
the  contract.  But  this  principle  does  not  apply  here.  This  is  a 
much  stronger  case.  Here  the  land  was  actually  conveyed.  The 
defendant  can  only  be  held  liable  to  the  amount  that  he  has  been 
benefited  by  the  occupation,  as  he  has  not  paid  the  purchase-money, 
and  not  for  what  a  single  witness  may  say  was  the  annual  value  of 
the  premises.  By  such  a  pi'ocess,  the  plaintiffs,  in  a  short  time,  tak- 
ing advantage  of  their  own  refusal  to  rescind  a  contract,  which  the 
judgment  in  this  case  assumes  ought  to  have  been  rescinded,  would 
have  received  the  price  of  the  land,  and  then  have  taken  the  land 
itself." 

Assumpsit  for  use  and  occupation,  or  the  process  of  forcible  de- 
tainer, does  not  lie  against  one  who  has  acquired  possession  under  a 
contract  of  sale  which  he  refuses  to  execute.     McNair  v.  Schwartz, 

27* 


318  APPENDIX. 

16  Illin.  24;  Dixon  v.  Haley,  lb.  145.     Nor  against  a  vendor  who 
remains  in  possession.     Greenup  v.  Vernor,  IG  Illin.  2G. 

A  contract  of  sale,  giving  -the  vendee  a  right  to  enter  and  occupy 
till  default  in  payment  of  the  price,  without  reservation  of  rent  or 
limitation  of  time,  is  a  license,  and  not  a  lease.  Hence,  upon  breach 
of  contract,  the  vendor  may  enter  without  notice  or  demand  of  pos- 
session.    Stone  V.  Sprague,  20  Barb.  509. 

In  Dwight  V.  Cutler,  3  Mich.  566,  the  defendant  made  proposals  to 
an  agent  of  the  plaintiff  for  the  purchase  of  lands,  and  a  parol  agree- 
ment was  made,  that,  if  the  plaintiff  accepted  the  pi'oposals,  a  deed 
should  be  given  as  soon  as  was  convenient ;  whereupon  the  defendant, 
by  permission,  took  possession.  The  plaintiff  affirmed  the  contract, 
executed  and  tendered  a  deed,  which  the  defendant  refused,  for  want 
of  covenants  of  warranty.  The  defendant  having  occupied  nine 
months,  and  all  negotiations  between  the  parties  ceased,  the  agent 
notified  him  that  if  he  continued  to  occupy  he  must  pay  rent.  He 
afterwards  remained  in  possession  fifteen  months.  Held,  he  was 
liable  to  pay  rent  for  the  fifteen  months,  but  not  foi*'the  previous  nine 
months,  the  plaintiff  having  been  bound  to  give  a  deed  with  covenants, 
and  the  failure  to  consummate  the  sale  having  therefore  been  attribu- 
table to  his  fault.  The  Court  give  the  following  view  of  the  course 
of  decisions  upon  this  subject :  "  On  the  defendant's  first  entry  into 
the  possession  of  the  premises,  he  became  the  tenant  at  will  of  the 
plaintiff.  (Gould  v.  Thompson,  4  Mete.  224;  Ball  v.  CuUimore,  2 
Cr.  M.  &  R.  120  ;  Right  v.  Beard,  13  East,  210  ;  1  Mees.  &  W.  700 ; 
Doe  V.  Jackson,  1  B.  &  C.  455  ;  Doe  v.  Chamberlaine,  5  lb.  14 ; 
Doe  V.  Caperton,  9  Carr.  &  Payne,  112  ;  Kirk  v.  Taylor's  Heirs,  8 
B.  Mon.  262.)  And  during  the  continuance  of  his  possession,  noth- 
ing appears  to  have  been  done  by  either  of  the  parties  to  determine 
the  tenancy.  His  occupation  having  been  beneficial  to  him,  that  is  a 
sufficient  ground  to  imply  a  promise  to  pay  a  reasonable  sum  by  way 
of  compensation  for  such  occupancy,  unless  there  is  something  in  the 
circumstances  inconsistent  with  the  notion  of  such  a  promise,  or  of  an 
obligation  to  pay.  We  are  all  clearly  of  opinion  that  the  plaintiff  is 
entitled  to  recover  for  the  use  of  the  premises  during  the  fifteen 
months  they  were  occupied  by  the  defendant,  after  all  negotiation  for 
the  purchase  was  at  an  end,  and  he  was  notified  that  if  he  continued 


USE   AND   OCCUPATION.  319 

in  possession  any  longer,  he  must  pay  rent.  To  this  extent,  Howard 
V.  Shaw,  8  M.  &  W.  118,  is  directly  in  point  to  sustain  the  present 
action.  There  a  party  who  had  been  let  into  possession  under  a  valid 
contract  of  purchase  which  was  afterwards  abandoned,  was  held  liable 
to  an  action  for  use  and  occupation  at  the  suit  of  the  vendor  for  the 
period  during  which  he  continued  in  possession  after  the  abandonment 
of  the  contract,  Alderson,  B.,  saying :  '  While  the  defendant  was  in 
possession  under  the  contract  of  sale,  he  was  a  tenant  at  will  under  a 
distinct  stipulation  that  he  should  be  rent  free  ;  therefore,  for  that 
time,  no  action  for  use  and  occupation  can  be  brought  against  him  ; 
but  when  that  contract  is  at  an  end,  he  is  a  tenant  at  will  simply  ; 
therefore,  from  that  time  he  is  to  pay  for  the  occupation.'  See  also 
Osgood  V.  Dewey,  13  T.  R.  240,  In  the  present  case,  there  never 
was  a  valid  contract  of  purchase.  If  the  minds  of  the  parties  can  be 
said  ever  to  have  met,  their  agreement  was  by  parol,  merely,  and 
void  under  the  Statute  of  Frauds,  and  there  had  been  no  such  part- 
performance  as  gave  either  of  them  a  right  to  enforce  it  in  equity. 
When,  therefore,  the  defendant  refused  to  accept  the  deed  tendered, 
and  the  plaintiff  to  execute  any  other,  the  parties  stood  in  respect  to 
the  subsequent  occupation,  in  the  same  relation  to  each  other  as 
though  a  valid  agreement  had  been  made  and  afterwards  abandoned. 

"As. to  whether  the  defendant  is  liable  for  the  first  nine  months  of 
his  occupancy,  we  have  entertained  more  doubt.  He  was  admitted 
into  possession  by  the  plaintiff's  agent,  on  his  making  a  proposition  to 
purchase,  and  under  the  expectation  that  this  proposition  would  be 
accepted  by  the  plaintiff,  when  made  known  to  her,  and  a  conveyance 
executed  accordingly.  The  circumstances  clearly  repel  any  presump- 
tion of  a  promise  by  the  defendant  to  pay  for  his  occupation  pending 
the  negotiations  for  the  purchase,  i?i  the  event  of  the  plaintiff's  refusal 
to  accept  his  proposition,  or  having  accepted  it,  her  subsequent  failure 
to  perform  on  her  part.  (Winterbottom  v.  Ingham,  7  Ad.  &  Ell.  611 ; 
Hough  V.  Birge,  11  Verm.  190  ;  Johnson  v.  Beauchamp,  9  Dana,  124 ; 
Kirtland  v.  Pounsett,  2  Taun.  145.)  But  it  is  manifestly  just  that 
the  plaintiff  should  have  compensation  for  such  occupation,  m  the 
■  event  of  a  failure  in  the  consummation  of  the  sale,  occasioned  by  the 
defendant's  refusal  to  perform  on  his  part.  Upon  the  principle  be- 
fore stated,  a  promise  to  pay  for  such  occupation  in  such  event,  may 
fairly  be  implied.  If  this  view  is  not  fully  sustained  by  Hull  v. 
Vaughan,  (6  Price,  157,)  the  comments  of  Lord  Denmau,  in  Winter- 


320  APPENDIX. 

bottom  V.  Ingham,  (7  Ad.  &  Ell.  Gil,)  show  that  it  is  not  in  conflict 
with  the  English  decisions.  It  is  sustained  by  the  recent  case  of 
Smith  V.  Wooding,  (20  Ala.  R.  324,)  in  which  a  vendee,  who  had 
entered  into  possession  under  a  parol  contract  of  purchase,  and  after 
remaining  in  possession  for  twelve  months,  refused  to  pay  the  pur- 
chase money  and  abandoned  the  premises,  was  held  liable  to  the 
vendor,  he  not  being  in  fault,  for  the  use  and  occupation  of  the  land 
during  the  time  he  so  held  it.  And  it  would  seem  also  to  be  sanc- 
tioned by  Gould  v.  Thompson,  (4  Mete.  224.)  If  such  promise  could 
be  implied  in  such  a  case  where  the  sole  cause  of  the  failure  to  con- 
summate the  sale  was  the  plaintiff's  inability  to  convey,  occasioned  by 
inevitable  accident ;  surely  it  may  be  where  such  failure  is  caused  by 
the  defendant's  own  default  or  refusal  to  accept  a  conveyance  and 
perform  on  his  part.  It  is  believed  that  this  view  is  not  in  conflict 
with  Vanderhewill  v.  Storrs,  (3  Conn.  203,)  and  Smith  v.  Stewart, 
(6  J.  R.  46,)  which  may  be  regarded  as  sustaining  the  doctrine  that 
where  there  has  been  a  contract  to  purchase,  valid  at  law,  as  in  the 
former  case,  or  enforceable  in  equity  on  the  ground  of  part  pei'form- 
ance,  as  in  the  latter,  under  which  the  vendee  has  entered  and  occu- 
pied, the  vendor  caiinot  maintain  assumpsit  for  such  occupation  while 
the  contract,  though  unperformed,  is  yet  unrescinded  and  in  full  force ; 
for,  in  the  present  case,  as  we  have  already  said,  there  was  no  such 
contract.  If  this  view  is  correct,  the  plaintiff  is  entitled  to  recover  in 
the  present  action  for  the  iSrst  nine  months  of  the  defendant's  occu- 
pancy, if  it  appears  that  she  accepted  the  defendant's  proposition  to 
purchase,  and  offered  to  perform  on  her  part,  but  not  otherwise.  The 
case  finds  that  the  proposition  was  accepted.  Such  acceptance  created 
an  agreement  between  the  parties  by  which  the  plaintiff  simply  en- 
gaged to  sell,  and  the  defendant  to  purchase  the  premises,  on  the 
terms  specified,  nothing  being  said  about  the  title  or  covenants."  The 
Court  then  proceed  to  determine  that  the  defendant  was  not  liable, 
because  a  deed  with  covenants  was  not  tendered. 


DAMAGES. — PARTIES.  321 

Vol.  n.  p.  105.     Damages. 

It  has  been  held  in  Rhode  Island,  that  m  an  action  on  a  contract  to 
convey  land,  the  measure  of  damages  is  the  excess  of  the  value  of 
the  land  at  the  time  of  breach  over  the  agreed  price,  and  evidence  is 
admissible  of  such  value  at  and  about,  before  and  after  the  time  ;  the 
limits  as  to  time  being  within  the  reasonable  discretion  of  the  Court. 
The  admission  of  evidence  as  to  sales  from  June,  the  time  of  breach, 
to  the  following  March,  was  held  not  to  be  ground  of  new  trial. 
Barbour  v.  Nichols,  3  R.  I.  187. 


Vol.  II.  p.  180.     Parties. 

Bond  by  a  married  woman  for  the  price  of  land.  An  action  at 
law  having  been  brought  upon  the  bond,  and  successfully  resisted  on 
the  gi'ound  of  coverture ;  held,  eight  years  after  it  became  due,  a  bill 
in  equity  could  not  be  maintained  upon  it.  Todd's  Appeal,  24  Penn. 
429.  The  Court  say  (p.  431)  :  "The  delay  is  explained  by  telling 
us  that  the  plaintiff  attempted  several  other  remedies,  and  failed ;  but 
this  does  not  appear  in  the  case,  and  besides,  a  mistake  in  the  remedy- 
does  not  prevent  the  running  of  the  statute.  It  would  be  very  strange 
if  a  debt,  secured  in  proper  legal  form,  should  be  barred  by  lapse  of 
time,  and  one  that  is  entirely  informal  should  not  be.  Yet  even  this 
might  be  where  there  is  actual  fraud  in  the  debtor  to  conceal  the 
defect ;  but  there  is  nothing  of  that  here.  If  the  plaintiff  ever  had  a 
right  to  this  form  of  relief,  it  is  now  barred  by  the  principle  of  the 
Statute  of  Limitations." 

With  regard  to  the  effect  of  an  assignment  of  a  contract  for  the  sale 
and  purchase  of  land  upon  the  respective  rights  of  the  parties,  the 
following  case  recently  occurred  in  Massachusetts.  The  defendant 
gave  to  the  plaintiff  a  bond,  conditioned  that  "  he,  his  heirs  and 
assigns  shall  convey  "  (certain  real  estate  to  the  plaintiff)  "  his  heirs 
and  assigns,  provided "  (the  plaintiff)  "  his  heirs  and  assigns  shall 
pay  "  (the  defendant,  his  heirs  and  assigns  a  certain  sum.)     The  bond 


322  APPENDIX. 

having  been  assigned,  the  assignee  tendered  the  sum  mentioned  to  the 
defendant,  who  had  previously  conveyed  the  land  to  a  third  person. 
Held,  an  action  was  maintainable  on  the  bond.  Harrington  v.  Barnes, 
10  Cush.  106.  Metcalf,  J.,  says  (p.  108):  "The  first  part  of  the 
condition  is,  that  the  defendant,  his  heirs  and  assigns,  shall  convey 
certain  land.  The  words  "  heirs  and  assigns  "  are  here  inoperative  ; 
because  a  subsequent  part  of  the  condition  is,  that  the  land  shall  be 
conveyed  by  a  deed  executed  and  acknowledged  by  the  defendant 
himself.  The  condition  also  is,  that  the  defendant  shall  convey  the 
land  to  the  plaintiff  himself,  and  not  that  he  shall,  on  any  contingency, 
convey  it  to  any  one  else.  The  words  are  '  shall  convey,  &c.,  to  &c., 
his  heirs  and  assigns  forever.'  These  last  words  do  not  legally  mean 
that  the  defendant  shall  convey  the  land  to  the  plaintiff,  or  to  his  heirs 
or  assigns,  but  that  he  shall  convey  to  the  plaintiff  an  estate  in  fee- 
simple  ;  those  words  in  a  deed  being  necessary  to  convey  such  an 
estate.  The  condition  furthermore  is,  that  such  conveyance  shall  be 
made  by  the  defendant  to  the  plaintiff,  pi'ovided  '  the  said  plaintiff,  his 
heirs  and  assigns,  shall  first  pay  to  said '  defendant,  '  his,  heirs,  execu- 
tors, administrators,  or  assigns,  the  sum  of  $300.'  The  words  '  heirs,' 
&c.,  can  have  no  operation,  and  must  be  treated  as  insensible  surplus- 
age. The  word  '  assigns '  is  also  inoperative,  unless  it  means  some- 
thing different  from  heirs,  executors,  or  administrators.  But  the 
plaintiff's  assigns  may  mean  his  assignee  of  the  bond,  and  it  can  have 
no  other  operative  meaning.  We  must,  therefore,  hold  that  it  means 
him.  The  payment  then  was  to  be  made  by  the  plaintiff,  or,  by  the 
person  to  whom  he  should  assign  the  bond,  and  was  to  be  made  to 
the  defendant  alone,  if  no  operative  meaning  can  be  given  to  the 
words  'his  assigns,'  or,  to  his  assignee  of  the  land,  if  such  is  the 
meaning  of  those  words.  And  as  the  case  finds  that  Barker  was  the 
plaintiff's  assignee  of  the  bond,  and  that  he  seasonably  tendered  the 
money  to  the  defendant,  the  terms  of  the  condition  respecting  pay- 
ment have  been  complied  with.  We  need  not  decide  whether  any 
tender  was  necessary  after  the  defendant  conveyed  the  land  to  Goffe. 
A  deed  given  by  the  defendant,  after  that  conveyance,  would  not 
have  been  a  performance  of  the  condition  of  the  bond,  unless  he  had 
first  procured  a  conveyance  of  the  land  to  himself,  from  Cutting.  For 
the  condition  was,  not  mei'ely  that  the  defendant  should  execute  and 
acknowledge  a  quit-claim  deed  of  the  land,  but  that  he  should  '  con- 
vey '  it  by  such  a  deed." 


SALES   BY    ORDER   OF   COURT.  323 

A  vendee,  who  becomes  the  administrator  of  the  vendor,  may  have 
relief  in  a  suit  against  the  widow  and  heirs,  whether  the  succession  is 
open  or  not.  His  claim  is  not  wholly  in  the  nature  of  a  money  de- 
mand, requiring  to  be  presented  to  the  administrator.  Robinson  v- 
M'Donald,  11  Tex.  385. 


Vol.  II.  p.  216.     Sales  by  Order  of  Court. 

Courts  of  Equity  have  a  general  supervision  over  sales  decreed  by 
them,  to  be  exercised  by  bill,  petition,  or  motion.  Coffey  v.  Coffey, 
16  111.  141. 


The  purchaser  of  property,  sold  under  a  decree  of  Chancery,  be- 
comes a  quasi  party  to  the  cause,  so  far  as  relates  to  the  rights  and 
duties  properly  appertaining  to  such  purchase.  Hence,  if  he  fails  to 
pay  the  purchase-money  or  any  part  of  it,  when  due,  the  Court  may, 
on  motion  and  without  notice,  enter  judgment  and  award  execution 
against  him  for  that  amount.     Blackmoi'e  w.  Barker,  2  Swan,  340. 

The  sale  of  land  by  the  Master,  under  a  Chancery  decree,  is  not 
complete,  till  confirmation  of  his  report  of  the  sale.  Before  such 
confirmation  ;  on  petition  of  a  creditor,  proof  of  sale  at  an  undervalue, 
for  the  benefit  of  the  debtor,  and  an  agreement  by  the  creditor  to 
make  a  reasonable  advance  upon  the  sum  bid  ;  the  Court  may  open 
the  biddings.     Childress  v.  Hurt,  2  Swan,  487. 

Under  a  license,  on  petition,  to  sell  172  acres  owned  in  common,  in 
part  by  married  women  and  infants,  for  division,  the  sale  took  place 
and  was  confirmed,  and  the  last  payment  made,  but  afterwards,  prior 
to  the  final  decree,  it  was  discovered  that  the  tract  contained  about 
twenty  acres  more  than  both  parties  supposed.  Upon  petition  for 
payment  for  the  surplus,  or  to  set  aside  the  sale  at  the  option  of  the 
purchaser  ;  held,  be  should  be  required  to  pay  for  the  surplus  at  the 
same  rate  as  for  the  172  acres.     Horn  v.  Denton,  2  Sneed,  125. 


324  APPENDIX. 

A  purchaser  at  a  sale  under  a  decree  in  a  suit  for  partition  will 
not  be  attached  for  refusal  to  pay  the  purchase-raoncy,  until  after  an 
order  to  pay  it.     Cowell  v.  Lippitt,  3  R.  I.  92. 

It  has  been  recently  held  in  Maryland,  that  Cliancery  sales  are 
made  subject  to  all  incumbrances,  and  the  rule  of  caveat  emptor 
applies,  in  the  absence  of  a  contrary  agreement  proved  by  the  pur- 
chaser.    Farmers,  &c.  v.  Martin,  7  Md.  342. 


INDEX 


VOL.  If. 


28 


INDEX 


ABANDONMENT   OF    SALE, 

by  vendor,  I.  98. 
ABSTRACT   OF    TITLE,    L  258. 

time  of  delivering,  L  204,  206,  259. 

duty  of  vendor  as  to,  L  226,  228. 

who  is  entitled  to,  L  258,  259. 

Master  in  Chancery  proceeds  on,  I.  248,  249,  259. 

how  verified.  L  259. 

what  sufficient,  L  260. 

reference  of  title  founded  on,  L  248,  249,  259. 

defect  of  title  appearing  on,  IL  15,  24. 

verification  of,  IL  34,  35. 
ACCEPTANCE, 

of  oiFer,  contract  by,  I.  14,  15. 

when  necessary  under  the  Statute  of  Frauds,  1. 122,  123. 
what  is,  II.  253. 

of  deed,  necessary  to  title,  I.  218. 

necessary  to  agreement,  I.  265. 
ACCIDENT, 

what,  IL  242. 
ACCOUNT   OF    RENTS   AND   PROFITS,  L  452,  n. 
ACKNOWLEDGMENT   OF    DEED, 

form  of,  L  36,  37,  38. 
ACT   OF   PARLIAMENT, 

title  under,  IL  34. 
ACTUAL    NOTICE,  L  401,  405,  n. 


328  INDEX. 

ADEQUATE   CONSIDERATION, 

specific  performance  requires,  I.  439,  and  note. 
ADMINI8TRAT(JR, 

bond  of,  for  conveyance,  I.  G2. 

purchase  by,  a  trust,  I.  387. 

and  heir,  respective  rights  and  liabilities  of,  II.  184. 
ADMISSION  OB^  CONTRACT, 

whether  sufficient  under  the  Statute  of  Frauds,  I.  116. 
ADVERSE   POSSESSION, 

title  founded  on,  I.  215,  257,  258  ;  II.  30,  31. 

what  sufficient  to  prevent  a  sale,  I.  405,  n. 
ADVERTISEMENT  OF   AUCTIONEER, 

whether  evidence,  I.  94. 
AFFIRMATION  AND  WARRANTY, 

distinction,  I.  346. 
AFTER-ACQUIRED   PROPERTY, 

in  reference  to  a  devise,  what  is,  I.  5. 
AGENCY, 

and  trust  compared,  I.  372. 

ratification  of,  I.  407. 
AGENT, 

may  contract  by  letter,  I.  17. 

whether  authorized  to  receive  payment,  I.  38. 

of  husband,  when  the  wife  is,  I.  58,  59. 

for  sale  or  purchase,  I.  63,  64;  II.  195,  256. 

deed  of,  must  be  authorized  by  deed,  I.  64,  n. 

lease  by,  I.  64,  n. 

an  auctioneer  is  an,  I.  72. 

who  is  an,  under  the  Statute  of  Frauds,  I.  90. 

the  receiver  of  a  deposit  is  not  an,  I.  94,  95. 

suit  for  deposit  against,  I.  97. 

mode  of  sale  by,  I.  72,  n. 

signing  or  execution  by,  whether  sufficient  under  the  Statute  of 
Frauds,  I.  118,  284. 

whether  a  license  may  be  executed  by  an,  I.  132,  n. 

fraud  of,  I.  337. 

ratification  of  sale  by,  I.  338. 

duties   of,  in  relation  to  the   property  of  the  principal,  I.  369, 
372,  and  note. 


INDEX.  329 

AGENT,  continued. 

notice  to,  I.  406. 

lease  to,  from  principal,  I.  410,  411. 

of  vendee,  suit  by,  II.  69,  n. 

whether  a  proper  party  to  a  suit,  II.  185,  189. 

misrepresentations  by,  II.  228,  230. 
AGREEMENT, 

(See  Contract.) 

to  devise,  I.  1,  n.,  439  ;  II.  247. 

between  husband  and  wife,  I.  57. 

and  conveyance,  distinction  between,  I.  62. 

meaning  of  the  term  in  the  Statute  of  Frauds,  I.  103. 

for  lease,  whether  valid  under  the  Statute  of  Frauds,  1. 119, 121. 

cannot  be  partly  verbal  and  partly  written,  I.  120,  121,  122. 

for  lease,  and  lease,  distinction,  I.  262,  263. 
how  enforced,  I.  263. 

requires  mutual  assent,  I.  265. 

executed  and  executory,  I.  1 ;  II.  249. 
AIR, 

license  in  connection  with,  I.  141. 
ALIEN   PURCHASER,  I.  63. 
ALIENAGE, 

etfect  of,  upon  title,  I.  215,  222. 
ALTERNATIVE   CONTRACT, 

as  to  price,  I.  23. 
AMENDS, 

in  case  of  revocation  of  license,  I.  139  ;  II.  269. 
ANCILLARY, 

claim  for  compensation  in  equity  is,  I.  419. 
ANNUITY, 

time  essential  in  case  of,  I.  181. 
ANSWER, 

denying  mistake,  I.  11,  12. 

in  case  of  parol  contract,  I.  123,  452. 

effect  of,  upon  costs,  II.  160. 

of  purchase  for  valuable  consideration,  II.  203. 
APPEAL, 

in  case  of  judicial  sale,  II.  222,  223. 
28* 


330  INDEX. 

ARBITRATION, 

price  iixed  by,  I.  23,  n.,  115,  116. 
damages  fixed  by,  II.  132. 
specific  performance  in  connection  with,  II.  134. 
ASSIGNEE, 

of  vendee,  liability  of  for  price,  I.  54. 
bankrupt,  purchase  by,  I.  395. 
covenant  in  deed,  defence  against,  II.  89,  n. 
ASSIGNMENT, 

license,  whether  subject  to,  I.  108,  132  and  note,  134  and  note, 
of  lease,  when  presumed,  I.  257. 
parties  in  case  of,  II.  181. 
ASSUMPSIT, 

for  price  paid,  by  vendee,  II.  61. 
to  try  title,  II.  61,  and  note. 
ATTACHING  OFFICER, 
is  not  a  trustee,  I.  386,  n. 
ATTESTED   COPIES   OF   DEEDS, 

when  required,  I.  256,  257. 
ATTORNEY, 

liability  of,  for  deposit,  I.  97. 
purchase  by,  from  principal,  I.  393  ;  II.  235. 
responsibility  of,  as  to  title,  11.  236. 
AUCTION,  72. 

agency,  in  case  of,  I.  68,  69. 

what  is  an,  I.  72. 

when  a  sale  at,  is  completed,  I.  75. 

sale  of  distinct  lots,  I.  76. 

lease  by,  I.  76. 

puffing  in  case  of,  I.  77  ;  II.  258. 

agreement  to  prevent  competition  in  case  of,  I.  82  ;  II.  258. 

whether  within  the  Statute  of  Frauds,  I.  88. 

parol  evidence  as  to  an,  I.  92. 

deposit  in,  case  of,  I.  94. 

duty,  in  case  of  leases,  I.  76. 

whether  Statute  of  Frauds  applies  to,  I.  99. 

duty,  payment  of,  not  a  part-performance,  I.  155. 

sale,  to  trustee,  I.  389. 

by  order  of  Court,  II.  217. 


INDEX.  331 

AUCTIONEER, 

whether  an  agent,  I.  72,  88. 

whether  an  owner  may  act  as,  I.  76. 

purchase  by,  I.  86. 

authority  of,  whether  it  must  be  written,  I.  86. 

whether  he  may  delegate  his  authority,  I.  86. 

is  a  stakeholder,  I.  94,  95. 

whether  he  may  receive  payment,  I.  87. 

liability  of,  I.  95,  n.,  225. 

whether  an  agent  under  the  Statute  of  Frauds,  I.  88. 

action  by,  against  vendor,  I.  95,  n. 

clerk  of,  signing  by,  I.  90. 

declarations  of,  at  sale,  I.  92,  93,  94,  174. 

advertisement  of,  whether  evidence,  I.  94. 

receiving  a  deposit,  liability  of,  I.  94,  95,  97,  98,  99. 

writing  of,  whether  sufficient  under  the  Statute  of  Frauds,  I.  121. 

recovery  of  deposit  from,  II.  69,  n. 
AUTHORITY, 

of  agent,  verbal,  64  and  note. 

auctioneer,  whether  it  must  be  written,  I.  86. 
AWARD, 

specific  performance  of,  I.  441  ;  II.  242. 

in  case  of  married  woman,  II.  191. 


B. 

BANKRUPT, 

assignee  of,  is  a  trustee,  I.  395. 
purchase  by,  I.  395. 

mortgagee  of,  may  purchase,  I.  396. 
BANKRUPTCY, 

effect  of  upon  the  title  of  a  vendor,  II.  28. 
BEXWELL  V.  CHRISTIE,  I.  77,  n. 
BIDDING  AT   AUCTION, 

what,  I.  73,  and  note. 

opening  of,  11.  220. 
BILL,  &c., 

for  deposit,  defence  against,  I.  98. 

of  particulars  in  suit,  when  required,  II.  200. 


332  INDEX. 

BOND, 

for  title,  claim  of  heirs  upon,  I.  62, 

whether  the  Statute  of  Frauds  applies  to  the  sale  of,  1. 1 12. 
when  sufficient  under  the  Statute  of  Frauds,  I.  118. 
specific  performance  in  case  of,  I.  130. 
for  price,  defence  to,  II.  77,  78. 
liquidated  damages  in  case  of,  II.  120,  n. 
for  title,  form  of  declaring  upon,  TI.  310. 
eviction  in  case  of,  II.  313. 
retaining  of,  effect  upon  vendee's  rights,  II.  313. 
assignment  of,  II.  321,  322. 
BOOK, 

entry  in,  whether  a  sufficient  signing,  I.  121. 
BREACH, 

allegation  of,  in  equity,  II.  310. 
BRIDGE, 

license  to  build,  I.  139,  140. 
BUILDING, 

when  personal  property,  I.  3,  141. 
•BURDEN   OF   PROOF, 

as  to  title,  II.  17. 
BURNING  OF  PROPERTY  SOLD, 

effect  on  the  contract,  II.  75. 
BY-BIDDERS,  L  78. 

at  sale  by  order  of  Court,*  II.  217. 


C. 


CALENDAR  AND   LUNAR  MONTHS,  I.  206. 
CANCELLING  OF   CONTRACT, 

interest  in  case  of,  I.  51. 

remedy  in  equity  by,  I.  425,  n. 
CASH, 

consideration  need  not  be,  I.  21. 
CATCHING   BARGAINS, 

with  heirs,  &c.,  I.  362. 
CA  VEAT  EMPTOR,  L  334,  345,  n. ;  IL  216,  31 1,  324. 

venditor,  I.  345. 


INDEX.  333 

CERTAINTY. 

necessary  to  contract  by  letters,  I.  17. 

in  case  of  part-performance,  I.  149,  151. 
of  contract,  I.  165. 

specific  performance  requires,  I.  434,  440,  442. 
CESTUI, 

may  purchase  trust  estate,  I.  389,  n. 
CHURCH   TRUST, 

sale  in  violation  of,  I.  386. 
CIVIL   AND    COMMON   LAW, 

as  to  sales,  I.  345. 
COLLATERAL    CIRCUMSTANCES, 

parol  proof  of,  I.  177. 
CHOSE   IN  ACTION, 

article  for  purchase  is  not  a  mere,  I.  4. 
CLERK   OF   AUCTIONEER, 

signing  by,  I.  90. 
CLOUD   ON  TITLE, 

effect  of,  IL  285. 
COMMON, 

license  as  to,  I.  132. 
and  civil  law  as  to  sales,  I.  345. 
COMPETITION, 

agreement  to  prevent  at  auction,  I.  81 ;  LI.  258. 
COMPENSATION, 

in  case  of  part-performance,  I.  162  ;  LI.  312. 

deficiency  of  title  or  quantity,  I.  234-236,  240,  246, 

312,  316,  418. 
the  sale  of  a  lease,  L  276,  277,  285. 
misdescription,  I.  291-295. 
fraud,  L  336. 
equity,  L  418  ;  IL  136,  183,  284. 
and  rescinding  compared,  L  422,  n. 

in  connection  with  specific  performance,  L  433,  440,  n.,  445. 
case  of  notice,  II.  91. 
case  of  doubtful  title,  II.  15,  16. 
CONCURRENT, 

when  conveyance  and  payment  must  be,  I.  26. 
•  (See  Covenants.     Mutuality.) 


334  INDEX. 

CONDITIONAL, 

tender  of  deed,  II.  .55,  74. 
CONDITIONS, 

of  auction,  parol  evidence  as  to,  I.  92,  94. 

precedent  and  subsequent,  time  in  connection  with,  I.  181. 
CONFIDENTIAL   RELATIONS, 

sale  in  violation  of,  I.  3G9. 

what  are,  L  369. 
CONNECTED  WRITINGS, 

may  be  construed  together,  I.  17. 
COMPROMISE, 

fraud  avoids,  I.  329. 
CONCEALMENT, 

by  vendee,  I.  340. 

general  effect  of,  I.  345,  n. 

presents  specific  pei'formance,  I.  437. 

remedies  in  case  of,  II.  225. 
CONSIDERATION, 

of  contract,  I.  19  ;  II.  254. 

to  whom  paid,  I.  53,  54,  57. 

in  case  of  husband  and  wife,  I.  57,  58. 

under  Statute  of  Frauds,  I.  102,  n.,  103,  n. 

mutuality  a  sufficient,  I.  298. 

inadequate,  I.  353,  354  ;  IL  304. 

(See  Inadequate  Consideration.) 

excess  of,  I.  359. 

connection  of,  with  notice,  I.  406,  n. 

specific  performance  requires,  I.  439,  and  note. 

nature  of,  I.  439,  n. 

of  covenants,  making  them  dependent  or  independent,  II.  41,  n., 
42,  43. 

whether  covenants  are,  for  a  note,  &c.,  II.  85. 
CONSPIRACY, 

as  to  sale  at  auction,  I.  82,  n. 
CONSTRUCTIVE, 

fraud,  I.  349. 

notice,  L  400,  402,  403,  n.,  407,  n. 
CONSTRUCTION, 

of  contract,  L  164 ;  II.  274,  281.  • 

as  to  price,  I.  25. 


INDEX.  335 

CONSTRUCTION,  continued. 

of  power  of  attorney,  I.  65. 

Statute  of  Frauds,  I.  102,  n.,  116. 
contract  in  reference  to  time,  I.  206. 

general  rules  of,  I.  164. 

certainty  required  in,  I.  165. 

in  case  of  separate,  connected  writings,  I.  168. 

by  map  or  plan,  I.  169. 
parol  evidence,  I.  172. 

(See  Parol  Evidence.) 

of  covenants,  II.  39,  and  note. 
CONTINGENT   REMAINDER, 

title  by  destruction  of,  11.  21. 
CONTRACT, 

(See  Agreement.) 
'   and  conveyance,  distinction  between,  I.  1,  2  ;  II.  312. 

to  devise,  I.  1,  n. ;  11.  247. 

and  offer,  distinction,  I.  14 ;  II.  253,  263. 

when  entire,  I.  108,  n. 

sale  of,  whether  Statute  of  Frauds  applies  to,  I.  112. 

construction  of,  I.  164. 

by  separate,  connected  writings,  I.  168. 

time  of  performing,  I.  180. 

and  representation,  distinction,  II.  249. 
CONVEYANCE, 

and  contract,  distinction  between,  I.  1,  2,  62. 

whether  contract  is  extinguished  by.  I.  2,  3. 

to  third  person,  effect  on  contract,  I.  34. 

by  agent,  authority  for,  I.  64,  n. 

terminates  a  license,  I.  133. 
COPIES   OF   TITLE-DEEDS, 

when  required,  I.  256,  257. 
CORN, 

sale  of,  whether  Statute  of  Frauds  applies  to,  I.  110. 
CORPORATION, 

suit  by  agent  of,  I.  69,  " 

agreement  for  purchase  by,  II.  249. 
CORRESPONDENCE, 

contract  by,  I.  15. 


336  INDEX. 

COSTS,  II.  160. 

in  equity  and  at  law,  II.  IGO,  antl  note,  1G4,  167,  168. 
effect  of  answer  upon,  II.  160. 
when  allowed  to  vendee,  II.  161,  and  note, 
in  case  of  doubtful  title,  II.  161,  and  note,  170,  171,  174. 
as  depending  upon  the  fairness  of  the  transaction,  II.  161,  n. 
in  case  of  delay  as  to  the  title,  II.  162-164. 
imperfect  abstract,  II.  163. 
refusal  to  convey,  II.  163. 
the  death  of  the  vendee,  II.  164. 

■  vendor,    I.  164-167. 
liability  of  vendee  for,  II.  165. 

in  case  of  possession,  II.  165,  166. 
when  not  allowed  to  either  party,  II.  167. 
of  Master's  sale,  II.  171. 
when  divided,  11.  171. 
upon  reference  to  a  Master,  II.  173. 
right  to  recover  back,  II.  177. 
incidental,  II.  178. 
of  conveyance,  by  whom  paid,  I.  36. 
security  for,  when  required,  I.  98. 

recovered  against  auctioneer,  how  he  may  recover,  I.  99,  100. 
against  purchaser  pendente  lite,  I.  413. 
against  trustee,  in  case  of  purchase  by  him,  I.  397. 
in  case  of  doubtful  title,  II.  15,  n. 
COURT, 

lease  by  order  of,  I.  76. 
sales.  (See  Sales  by  order  of  Court.) 

COVENANT, 

omission  of  in  deed,  corrected,  I.  10. 
for  further  assurance,  I.  256. 
to  produce  title-deeds,  II.  37. 

for  good  and  sufficient  deed,  II.  44,  46,  and  note,  48,  79. 
and  valid  deed,  II.  47. 
deed,  II.  45. 

warranty  deed,  II.  46,  and  note. 
good  and  'perfect  deed,  11.  47. 
proper  deed,  II.  48. 
lawful  title,  II.  48. 
title,  what  required,  II.  313. 


INDEX.  337 

COVENANTS, 

when  required  of  vendor's  heirs,  I.  61. 

mutuality  of,  I.  216 ;  11.  39,  n.,  41,  n.,  55,  74,  286. 

what  shall  be  inserted  in  a  lease,  I.  273. 

in  lease,  effect  of  upon  a  .purchaser  of  the  lease,  I.  274. 

in  deed,  do  not  bar  an  action  for  fraud,  I.  333. 

of  title,  equity  remedies  in  case  of,  I.  417,  n.,  418,  n.,  423,  n. 

whether  dependent,  II.  2,  and  note,  3,  4,  6,  7,  10,  11,  12. 

independent,  II.  39,  and  note,  57. 

note  in  case  of,  II.  81,  and  note. 

of  warranty,  action  upon  note  in  case  of,  II.  85. 

in  deed,  damages  upon,  11.  107,  108,  n. 
CREDITOR, 

in  trust  deed,  purchase  by,  I.  389,  n. 
CREDITORS, 

•fraud  against,  avoids  contract,  I.  20. 
CROPS, 

sale  of,  Statute  of  Frauds  as  to,  I.  105-107 ;  II.  260. 


D. 

DAM, 

license  in  connection  with,  I.  129,  130,  136,  138,  139,  141 ;  II. 
266,  269. 
DAMAGES, 

or  penalty,  whether  a  contract  is  for,  I.  24,  n. 

in  equity,  I.  34,  n.,  235,  419 ;  II.  137,  283. 

and  specific  performance,  I.  428,  429,  433 ;  11. 105,  251, 303, 304. 

of  vendor,  II.  105. 

vendee,  II.  107,  321. 
upon  covenants  in  deed,  II.  107,  108,  n. 

sale  of  personal  property,  II.  108,  n. 
in  case  of  fraud,  II.  113. 

exchange,  II.  114. 
where  the  plaintiff  has  been  in  fault,  II.  115. 
not  recovered  after  commencement  of  suit,  11.  117. 
tender  of,  II.  117. 
liquidated,  II.  119. 
to  be  settled  by  arbitration,  11.  132. 
VOL.  II.  29 


338  INDEX. 

DATE, 

day  of,  when  excluded,  I.  206, 
DEATH, 

of  party  to  contract,  eflFect  of,  I.  59. 
DEBT, 

sale  in  payment  of — interest,  I.  44. 
DECLARATIONS, 

of  agent,  I.  70. 

auctioneer,  I.  92-94,  174. 
DECREE, 

against  a  trustee,  in  case  of  purchase  by  him,  I.  397. 

whether  notice  to  a  purchaser,  I.  412. 

title  at  time  of,  II.  279. 

for  specific  performance,  not  a  judicial  sale,  11.  311. 
DEED, 

tender  of,  I.  35,  216,  218,  255 ;  II.  50,  71, 153,  286,  287,  312. 

demand  for,  I.  36,  37  ;  II.  53,  54. 

of  agent,  how  authorized,  I.  64,  n. 

undelivered,  whether  sufficient  evidence  of  contract,  1. 117, 118,  n. 

defectively  executed,         "  "  "  I.  118. 

insufficient,  may  be  a  good  license,  I.  132. 

acceptance  of,  necessary  to  title,  I.  218. 

giving  of,  when  sufficient,  I.  213,  222. 

a  good  title  does  not  always  require  a,  I.  257. 

inaccuracy  of,  an  objection  to  the  vendor's  title,  II.  20. 

tender  of,  whether  it  may  be  conditional,  II.  55,  74. 

of  third  person,  not  sufficient,  II.  281,  283. 
DEFEASANCE, 

notice  of,  I.  406,  n. 
DELAY, 

in  completing  a  sale,  effect  on  interest,  I.  42. 

specific  performance,  I.  443. 
DEMAND, 

for  deed,  L  36,  37  ;  IL  53,  54,  68,  and  note. 
DEMURRER, 

in  case  of  parol  contract,  I.  123. 

for  multifariousness,  II.  182,  183,  n. 
DEPENDENT, 

contract,  I.  33. 

covenant,  IL  2,  and  note,  3,  4,  6,  7,  10,  11,  12,  13,  55,  73,  74. 


INDEX.  339 

DEPOSIT, 

of  purchase-money,  interest  in  case  of,  I.  46-48,  96,  99. 

suit  for,  in  case  of  agency,  I.  69,  97 

in  auction  sale,  I.  94. 

definition  of,  I.  94. 

party  receiving,  is  a  stake-holder,  I.  94,  95. 

is  a  conditional  payment,  I.  95. 

recovery  of,  I.  95  ;  II.  69,  n. 

evidence  to  sustain  an  action  for,  I.  95,  n. 

claim  for,  against  vendor,  I.  98. 

bill  or  note  for,  defence  against,  L  98. 

forfeiture  of,  I.  98,  99. 

payment  of,  into  Court,  I.  99,  100. 

whether  a  penalty,  II.  128. 

bill  in  equity  for,  II.  138. 

interest  on,  II.  147. 

whether  an  infant  may  recover,  II.  189. 
DESCENT, 

of  estate  contracted  for,  I.  9. 

license,  whether  subject  to,  I.  132. 
DESCRIPTION, 

of  property,  under  Statute  of  Frauds,  I.  116,  n. 
DESTRUCTION, 

of  property  after  sale,  effect  of,  I.  214. 
DETERIORATION, 

of  property,  effect  on  price,  I.  43. 
sale,  I.  205. 
interest  in  case  of,  I.  44,  45,  and  note,  47. 
DEVISE, 

contract  for,  I.  1,  n.,  439  ;  II.  247. 

by  a  purchaser,  effect  of,  I.  5,  144. 

revocation  of,  by  sale,  I.  7-9. 

of  estate  previously  sold,  I.  8. 

license,  whether  subject  to,  I.  132. 

title  by,  II.  21. 

parties  to  suit  in  case  of,  II.  185. 
DISABILITY, 

of  party  to  perform,  effect  on  contract,  I.  34,  and  note  ;  II.  4. 
67,  281-283. 


340  INDEX. 

DISCRETION, 

speciilc  performance  is  matter  of,  I.  436  ;  II.  305. 
DITCH, 

license  to  dig,  I.  129. 
DOLUS  MALUS, 

as  connected  with  notice,  I.  399. 
DOMINANT  AND   SEIiVIP:NT   TENEMENTS, 

license  in  connection  with,  I.  129,  and  note. 
DOUBTFUL, 

title,  wliether  sufficient,  I.  210',  222,  435,  n.,  443,  445  ;  II.  15, 
21,23,  286. 
what  is  a,  I.  211. 
costs  in  case  of,  II.  161,  174. 

case,  whether  specific  performance  in,  II.  305. 
DOWER, 

deduction  on  account  of,  I.  61. 

vendor  bound  to  furnish  a  release  of,  II.  46,  n. 
DRAIN, 

license  for,  I.  130. 
DRUNKENNESS, 

effect  of,  upon  a  sale,  I.  351,  360. 
DUTCH  AUCTION,  I.  77,  n. 
DUTY, 

auction,  when  recoverable,  I.  76. 
to  what  applicable,  I.  76. 


E. 

EASEMENT, 

and  license,  distinction  between,  I.  129,  131,  136  ;  II.  268,  269. 
ELECTION, 

as  to  devise,  applies  to  a  purchaser,  I.  7. 

right  of,  as  to  price,  I.  23. 

of  remedy  by  vendee,  II.  64,  65. 
ENTAILMENT, 

sale  of  remainder  in  case  of,  I.  315. 
ENTIRE, 

when  a  sale  is,  108,  n.,  146,  233,  234,  236,  243. 


INDEX.  341 

ENTRY, 

in  a  book,  whether  a  sufficient  signing,  I.  121. 
EQUITABLE   TITLE, 

whether  sufficient,  L  227,  2*28  ;  IL  18,  29. 
contract  gives,  II.  252. 
EQUITY, 

title  of  purchaser  in,  I,  4. 

and  law,  jurisdiction  of,  as  to  mistake,  I.  12. 

in  case  of  part-performance,  I.  34,  n.,  142. 
doctrine  of,  as  to  agency,  I.  68. 
damages  in,  I.  235. 
remedies  in,  L  416,  417  ;  H.  250,  301,  302,  306,  310. 

(See  Laio  and  Equity.) 
costs  in,  IL  160,  167,  168. 
ESTATE, 

at  will,  sale  of,  not  within  the  Statute  of  Frauds,  I.  112. 
ESTOPPEL, 

and  license,  connection  between,  I.  131. 
EVICTION, 

■whether  a  defence  to  a  mortgage,  II.  89. 
EVIDENCE, 

of  agency,  I.  64,  n. 

what  required  for  reforming  an  instrument,  I.  323. 
of  fraud,  I.  342. 
EXCEPTION, 

to  title,  grounds  of,  I.  215. 
EXCESSIVE  CONSIDERATION,  L  359. 
EXCHANGE, 

damages  in  case  of,  IL  114. 
EXECUTED, 

and  executory  contract,  distinction,  I.  2,  215  ;  11.  14,  249. 
in  connection  with  mistake,  I.  304. 
•  distinction,  as  to  tender,  11.  312. 

conveyances,  remedies  in  equity  in  case  of,  I.  417,  n. 
and  executory  agreements,  remedies  in  equity,  I.  417,  n.,  422,  n. 
EXECUTORY, 

and  executed  contract,  distinction,  I.  2,  215 ;  II.  249. 

in  connection  with  mistake,  I.  304. 
29* 


342  INDEX. 

EXECUTORY,  continued. 

and  executed  contract,  in  connection  with  remedies   in   equity, 
I  417,  n.,  422,  n. 
as  to  tender,  II.  312. 
contract,  effect  of,  on  title,  I.  2,  215,  450,  n. 
EXECUTOR, 

of  vendor,  rights  and  duties  of,  I.  160. 
title  from,  II.  24. 
when  a  party,  I.  434,  n. 
EXECUTION, 

of  license,  revocation  after,  I.  134. 
•    sales,  part-performance  in  case  of,  I.  152. 
EXPRESS, 

consideration  need  not  be,  I.  21. 
EXPECTANCIES, 
sale  of,  I.  361. 

for  inadequate  consideration,  I.  361. 
of  heirs,  remainder-men,  &c.,  I.  363,  364. 
requires  proof  of  consideration,  I.  362,  364. 
when  valid,  I.  365,  366,  367,  n. 
mode  of  relief  for,  I.  637. 
effect  of  time  upon,  I.  367. 
ratification  of,  I.  368. 
EXPENSES, 

liability  of  vendor  or  vendee  for,  II.  178,  and  note. 
EXTINGUISHMENT, 

of  contract  by  conveyance,  I.  2,  and  note,  3. 
EXTRAVAGANT  PURCHASE, 
specific  performance  of,  I.  441. 


F. 

FEE, 

purchase  of,  and  lease,  distinction,  I.  263. 
FEME  COVERT, 

whether  bound  by  contract,  I.  56. 
FIRE, 

destruction  by,  effect  on  sale,  II.  75. 


INDEX.  343 

FIXTURES, 

interest  in  case  of,  I.  45,  n. 
FLOWING, 

contract  for,  whether  within  the  Statute  of  Frauds,  I.  108. 

right  of,  when  implied,  I.  127. 
FORCIBLE    DETAINER, 

process  of,  against  vendee,  II.  317. 
FORECLOSURE   SALE, 

bidding  at,  I,  81. 
FORFEITURE  OF   DEPOSIT,  L  98,  99  ;  IL  128. 

whether  in  the  nature  of  liquidated  damages,  II.  128. 
FORM,  L  72,  100. 

of  sale,  decree  against  trustee  in  case  of  purchase  by  him,  I.  397. 
FRAUD, 

consisting  in  inadequacy  of  consideration,  I.  20. 
(See  Inadequate,  ^c.) 

in  auction  sales,  L  82  ;  II.  258. 

parol  evidence  in  case  of,  I.  93,  174,  342. 

Statute  of  Frauds,  in  case  of,  I.  123. 

doctrine  of  part-performance  founded  on,  I.  147,  and  note,  151, 
153,  154. 

in  sale  of  leasehold,  I.  277. 

avoiding  of  sale  for,  L  324  ;  II.  301. 

whether  it  may  consist  in  unintentional  misrepresentation,  I.  325, 
335-337. 

may  be  suppressio  veri  or  suggestio  falsi,  I.  327,  345,  347. 

consist  of  representations  out  of  the  written  contract,  1. 328, 
342,  343. 

avoids  a  compromise,  I.  329. 

does  not  avoid  a  sale,  unless  it  misleads,  L  329,  345, 346,  356,  n., 
357,  n. 

renders  a  sale  voidable,  not  void,  I.  333. 

action  lies  for,  notwithstanding  covenants,  I.  333. 

as  to  any  part  of  the  property,  avoids  the  whole  sale,  I.  334. 

maxim  of  caveat  emptor  does  not  apply  in  case  of,  L  334. 

whether  compensation  may  be  claimed  in  case  of,  I.  336. 

party  responsible  for,  I.  336. 

of  agent,  I.  337. 
vendee,  L  339,  348. 


344  INDEX. 

P"'RAUD,  contmued. 

remedy  for,  I.  3^1  ;  II.  225. 

concurrent  jurisdiction  of,  in  law  and  equity,  I.  341. 

evidence  of,  T.  342. 

in  false  adirmation  concerning  rents,  I.  343. 

implied  or  constructive,  I.  349. 

(See  Implied  Fraud,  Incapacity,  Lunatic,  Mental  Inability,  Drunk- 
enness, Inadequacy  of  Consideration,  Excess  of  Consideration, 
Non  compotes  ;  Heirs,  contract  by  ;  Expectancies,  sale  of ; 
Trustees^  purc/iase  by.) 

as  connected  with  notice,  I.  399,  n. 

of  vendor,  effect  of  upon  a  note  for  the  price,  II.  79. 

equity  relieves  in  case  of,  I.  418,  n.,  419,  425,  n. ;  11.  90. 

measure  of  damages  in  case  of,  II.  113. 

interest  in  case  of,  II.  148. 

parties  to  suit  in  case  of,  II.  184. 

time  of  rescinding  for,  I.  333,  426. 

prevents,  specific  performance,  I.  436-438. 
FRAUDS, 

Statute  of  (See  Statute  of  Frauds.) 

FRAUDULENT   CONVEYANCE, 

title  under,  II.  21. 
FUND, 

for  payment  of  purchase-money,  I.  6. 

G. 

GOOD-WILL, 

purchase  of,  L  165,  n.,  187,  266,  335. 
and  sufficient  deed,  covenant  to  give,  11.  44,  316. 
valid  "  «  "        II.  47,  79. 

perfect        "  "  "        II.  47. 

GOODS   AND  LANDS, 

sale  of.  distinction  between,  I.  109,  n. 
GRANT, 

and  license,  distinction,  I.  130. 

public  license,  distinction,  I.  131. 
GRASS, 

sale  of.  Statute  of  Frauds  as  to,  1. 105,  110. 


INDEX.  '  845 


GROSS, 

mistake,  I.  316,  339,  n.,  359,  n. 

inadequacy  of  consideration,  I.  356. 
GROWING   PRODUCTS, 

whether  Statute  of  Frauds  applies  to,  T.  104. 
GUARDIAN, 

of  heir  of  vendor,  liability  of,  I.  62. 

sale  to,  of  ward's  estate,  I.  385. 


H. 

HEIR, 

election  of,  in  case  of  devise,  I.  7. 

sale  by,  I.  361. 

when  a  party,  I.  434,  n. 

of  vendor,  whether  a  trustee,  II.  190. 
HEIRS, 

whether  an  estate  contracted  for  passes  to,  1.  9. 

of  parties  to  contract,  rights  and  duties  of,  I.  59,  61. 

whether  parties  to  suit,  I.  61. 

of  vendox',  suit  against,  II.  184. 

and  executors,  respective  rights  and  liabilities  of,  II.  184. 
HERBAGE, 

sale  of,  whether  within  the  Statute  of  Frauds,  I.  110,  n. 
HEREDITAMENT, 

what,  I.  108. 
HIGHEST   BIDDER, 

auction  is  a  sale  to,  I.  72. 
HOUSE, 

when  personal  property,  I.  3. 

license  to  erect,  I.  134. 
HUSBAND, 

and  wife,  rights  and  duties  of,  in  case  of  sale,  I.  56  ;  II.  '2o5. 

when  the  wife  is  agent  of,  I.  58,  59. 

and  wife,  title  in  case  of,  I.  216. 

action  in  case  of,  II.  188,  191. 


346  INDEX. 

I. 

IGNORANTIA  LEGIS,  &c., 

connected  with  notice.  I.  399. 
ILLEGALITY, 

of  consideration,  I.  20. 
sale,  effect  of,  II.  234. 
IMPLIED, 

revocation  of  will  in  reference  to  land  contracted  for,  I.  6. 

consideration  may  be,  I.  21. 

trust  of  agent,  I.  70. 

license,  L  127  ;  II.  264. 

fraud,*  I.  349. 

and  express  notice,  I.  400,  402,  403,  and  note,  407,  n. 

notice  to  agent,  I.  407. 
IMPROVEMENTS, 

by  a  purchaser  under  an  illegal  contract,  I.  4. 

upon  land  sold,  interest  in  case  of,  I.  47. 

sale  of,  whether  within  the  Statute  of  Frauds,  I.  112,  114. 

promise  to  pay  for,  whether  withia  the  Statute  of  Frauds,  I.  114. 

by  trustee,  after  purchasing  trust  estate,  I.  388. 

claim  for  in  equity,  I.  420,  n. 

agreement  to  pay  for,  11.  254. 
IMPROVIDENT   CONTRACT,  L  360. 
IN  REM, 

and  in  'personam,  jurisdiction,  I.  430. 
INADEQUACY  OF  CONSIDERATION,  L  20,  354. 

whether  evidence  of  fraud,  I.  354. 

connected  with  other  grounds  of  objection  to  a  sale,  I.  354. 
mistake  and  surprise,  I.  354,  n. 

whether  ground  for  rescinding  or  refusing  specific  performance, 
L  358,  II.  304. 

must  be  gross,  I.  356. 
INCAPACITY, 

to  contract,  I.  349. 

convey,  effect  of,  II.  4. 
INCORPOREAL   HEREDITAMENT,     . 

and  license,  distinction,  I.  130. 
INCUMBRANCE, 

parol  agreement  to  pay,  I.  113. 


INDEX.  347 

• 

INCUMBRANCE,  continued. 

whether  an  objection  to  performance  of  contract,  1.  236. 
(See  Title.     Partial  Failure,  Sfc.) 

rescinding  of  contract  for,  II.  147. 
INDEPENDENT    COVENANTS,  I.  30,  31 ;  II.  2,  n.,  11,  13,  39, 
and  note,  57. 

promissory  note  in  case  of,  II.  81,  and  note. 
INDORSEE, 

of  note,  whether  failure  of  title  is  a  defence  against,  II.  84. 
INFANCY, 

whether  an  objection  to  title,  I.  215  ;  II.  32. 
INFANT, 

heirs  of  vendor,  liability  of,  I.  61. 
conveyance  by,  I.  62. 

auction  sale  of  property  of,  I.  79. 

claim  for  specific  performance  by,  I.  435  ;  II.  189,  307,  308. 

title  under,  11.  32. 

parties  to  sale  and  action,  II.  189. 

trustees,  conveyance  by,  II.  189. 
INJUNCTION, 

against  cutting  timber,  I.  9. 

suit  for  damages,  II.  140. 

remedy  of,  in  case  of  sale,  II.  239. 
INSOLVENCY, 

eifect  of,  upon  title,  II.  29,  n.  • 

INTENTION, 

whether  construction  of  covenants  depends  on,  II.  2,  n.,  39,  41,  n. 
INTEREST,  I.  41 ;  H.  141,  155. 

claim  of  vendor  for,  I.  41. 

on  deposit,  I.  96,  99  ;  11.  147,  156. 

when  recoverable,  I.  41  ;  II.  7. 

in  case  of  reversions,  I.  45. 

none,  upon  money  had  and  received,  II.  117. 

in  case  of  investment  of  the  purchase-money,  I.  46. 

as  part  of  damages  recovered,  II.  141,  155. 

when  a  pux'chaser  must  pay,  II.  141. 

is  not  required  to  pay,  II.  150. 

in  case  of  fraud,  II.  148. 

rescinding,  II.  148. 


348  ■  INDEX. 

• 

INTEREST,  continued. 

whether  tender  of  deed  is  necessary  to  recover,  II.  15^}. 

in  case  of  vacant  land,  II.  158. 

question  of,  when  for  the  jury,  II.  155. 

agreement  not  to  allow,  II.  155. 

claim  of  vendee  for,  I.  461  ;  II.  156,  284,  285. 

on  money  paid  into  Court,  I.  50. 
INTERPLEADER,  I.  98,  100. 
INVESTMENT, 

of  purchase-money,  interest  in  case  of,  I.  46. 


J. 

JOINDER, 

of  parties,  11.  181,  182,  187,  188. 
JOINT, 

parties,  rights  of,  as  to  price,  I.  38. 

vendors,  form  of  deed  of,  I.  54. 
JUDGMENT, 

against  vendee,  effect  of,  I.  4,  5,  9. 

notice  of,  I.  402. 

against  vendor,  effect  on  the  title,  II.  27,  48,  78. 
JURISDICTION, 

for  specific  performance,  I.  430  ;  11.  309. 

L. 

LACHES, 

(See  Lapse  of  Time,  Time,  Limitation.) 

a  bar  to  specific  performance,  I.  180,  n. 
LANDLORD, 

and  tenant,  notice  in  case  of,  I.  409,  410. 
LANDS, 

what  are,  under  the  Statute  of  Frauds,  I.  104,  109,  n. 

and  goods,  distinction  between  sales  of,  I.  109,  n. 
LAPSE   OF    TIME,  IL  204. 

(See  Limitation,   Time.) 

effect  of,  upon  auction  sale,  I.  80. 

title  by,  II.  30. 


INDEX.  349 

LAW, 

and  equity,  jurisdiction  of,  as  to  mistake,  I.  12. 

as  to  agent,  I.  G8. 
and  fact,  mistake  of,  I.  304,  305  and  note, 
equity,  concurrent  suits  in,  I.  416,  n. 

remedies  in,  1. 417  ;  II.  1,  250, 301, 302, 306, 310, 321. 
LAWFUL   TITLE, 

■  contract  for,  II.  316. 
LEASE, 

by  agent,  I.  64,  n. 

agreement  for,  whether  valid  within  the  Statute  of  Frauds,  1. 119, 

121. 
and  license,  distinction  between,  I.  129,  131 ;  II.  318. 
title  in  case  of,  I.  262. 
and  agreement  for,  distinction,  I.  262. 
purchase  of  the  fee,     "       L  263. 
covenant  in,  for  conveyance  of  the  fee,  I.  265. 
agreement  for,  when  complete,  I.  265. 

uncertainty  avoids,  I.  265. 
of  a  good-will,  I.  266. 

what  title  shall  be  made  by  a  vendor  of  a,  I.  266,  271. 
notice  to  purchaser  of  a,  I.  271,  280  and  note, 
waiver  of  title,  upon  sale  of,  I,  272. 
what  covenants  shall  be  inserted  in,  I.  273. 
title  to,  in  part,  effect  on  a  sale,  I.  275. 
whether  avoided  by  mistake,  I.  275. 
compensation,  in  case  of  the  sale  of  a,  I.  276,  277,  285. 
rescinding         «  «  "  I.  277. 

parol  evidence  concerning,  I.  281. 

waiver  in  case  of,  I.  282-284. 
Statute  of  Frauds  as  to,  I.  283. 
part-performance  in  case  of,  I.  285. 
assignment  of,  when  presumed,  I.  257. 
renewal  of,  by  trustee,  I.  386. 
to  trustee,  by  cestui,  I.  395. 
notice  of,  I.  402,  409. 
to  agent,  by  principal,  I.  410,  411. 
specific  performance  in  case  of,  I.  434,  435. 
by  tenant  for  life,  IL  193. 
VOL.  II.  30 


350  INDEX. 

LEASEHOLD, 

interest,  whether  Statute  of  Frauds  applies  to,  I.  109. 
title  to,  II.  24. 
LEGAL, 

title,  whether  vendor  must  make,  IL  18. 
LEGISLATIVE, 

grant  and  license,  distinction  between,  I.  131. 
LETTERS, 

contract  by,  I.  15. 

whether  a  sufficient  memorandum  within  the  Statute  of  Frauds, 
L  118,  119. 
LICENSE,  L  125 ;  IL  264. 

and  part-performance,  connection  of,  I.  125. 
whether  it  passes  an  estate,  I.  108,  125,  129. 
is  a  mere  authority,  I.  125,  129,  132. 
whether  assignable,  I.  125,  132  and  note,  134,  n. 
is  a  mere  remitter  of  damages,  I.  125. 

excuse  for  trespass,  I.  129. 
will  not  sustain  trespass,  I.  125. 
plea  of,  does  not  involve  the  title,  I.  126. 
may  be  implied,  1. 127  ;  II.  264. 
in  reference  to  mill,  L  127,  131,  132,  138. 
timber,  I.  132,  133. 
wharf,  L  127. 
drain,  I.  130. 
light  and  air,  128,  141. 
dam,  L  129,  130,  131,  132,  136,  138,  139  ;  IL 

266,  267. 
ditch,  L  129,  138. 
sluice,  I.  137. 
navigation,  I.  128. 
perpetual,  1. 128. 
and  lease,  distinction,  I.  129,  131  ;  IL  318. 

easement,  distinction,  L  129,  131,  136  ;  IL  268,  269. 
in  connection  with  dominant  and  servient  tenements,  I.  129,  n. 
revocation  of,  L  129,  130,  133,  134;  IL  268. 
for  a  way,  L  130,  140. 

bridge,  L  139,  140. 
and  grant  of  incorporeal  hereditament,  distinction,  1. 130. 
public  grant,  distinction,  I.  131. 


INDEX.  351 

LICENSE,  continued. 

for  occupation,  to  vendee,  I.  129,  130. 

deed  valid  as  a,  I,  132. 

is  a.  personal  authority,  I.  132. 

whether  descendible,  I.  132,  134,  n. 
devisable,  I.  132. 

as  to  right  of  common,  I.  132. 

whether  agent  may  exercise,  I.  132,  n. 

of  projit,  and  personal,  distinction,  I.  132,  n. 

time  of  executing,  I.  133. 

limited  by  the  life  of  the  licenser,  I.  133,  134,  n. 

terminated  by  a  conveyance,  I.  133. 

to  erect  a  house,  I.  134. 

revocation  of,  after  execution,  I.  134. 

to  cut  trees,  I.  135. 

by  parol,  and  under  seal,  I.  135,  136. 

in  case  of  permanent  erections,  &c.,  I.  136. 

and  tenancy  at  sufferance,  distinction,  I.  139. 
estoppel,  connection  of,  I.  141. 
LIEN, 

for  price,  I.  2,  n.,  54. 

of  judgment,  upon  estate  purchased,  I.  9. 
vendor  as  against  an  assignee,  I.  54. 
vendee,  by  payment  of  purchase-money,  I.  427  and  note. 
LIFE, 

annuity,  time  essential  in  case  of,  I.  181. 

estate,  sale  of,  when  void,  I.  315. 
LIGHT, 

license  in  connection  with,  I.  138,  139. 
LIMITATION,  II.  204. 

(See  Time,  Lapse  of  Time.) 

in  case  of  the  sale  of  expectancies,  I.  367,  368. 

title  by,  II.  30. 
LINE, 

agreement  to  straighten,  whether  within  the  Statute  of  Frauds, 
L  112. 
LIQUIDATED, 

damages,  II.  119. 

or  penalty,  whether  a  contract  is  for,  I.  23. 


352  INDEX. 

LIS  PENDENS,  I.  411 ;  II.  311. 
LOSING  CONTRACT, 

may  be  specifically  performed,  I.  438. 
LUNACY, 

eifect  of,  on  deed,  I.  425,  n. 
LUNAR  AND  CALENDAR  MONTHS,  L  206. 
LUNATIC, 

contract  by,  I.  350 ;  II.  194. 

specific  performance  in  case  of,  II.  306,  307. 


M. 

MAP, 

construction  of  contract  by,  I.  169. 
MARKETABLE   TITLE,  L  214. 
MARRIED  WOMAN, 

award  in  case  of,  I.  442. 
title  under,  II.  31. 

contract  of,  whether  enforced,  II.  255. 
MASTER, 

sale  by,  bidding  at,  I.  81  and  note, 
proceeds  on  the  abstract,  I.  259. 
sale  by,  IL  216. 

confirmation  of,  II.  323. 
MEMORANDUM, 

(See  Statute  of  Frauds.     Signing.) 
what  is  a  sufficient,  as  to  a  lease,  I.  284. 

under  Statute  of  Frauds,  L  372  ;  IL  262. 
MENTAL  INABILITY, 
to  contract,  I.  350. 

in  connection   with  inadequacy   of   consideration, 
L  354. 
MERGER, 

of  contract  in  conveyance,  I.  2  and  note,  3,  146. 

in  case  of  mistake,  I.  9,  10. 
does  not  prevent  an  action  for  fraud, 
L  333. 
MILL, 

implied  i-ight  to  flow  in  case  of,  I.  127. 


INDEX.  353 

MINE, 

how  far  real  estate,  within  the  Statute  of  Frauds,  I.  108. 
MISREPRESENTATION, 

(See  Fraud.) 

effect  of,  II.  225,  n. 

in  sale  of  leasehold,  I.  277. 
judicial  sale,  11.  220. 

partial,  effect  of,  I.  293. 

avoids  a  sale,  I.  324,  424. 

whether  it  must  be  intentional,  I.  325. 

in  a  plat  exhibited,  I.  328. 

does  not  avoid,  unless  relied  on,  I.  329. 

prevents  specific  performance,  I.  437. 
MISTAKE, 

in  sale,  I.  303. 

equity  corrects,  I.  9,  10. 

parol  evidence  of,  I.  11,  12,  16,  94,  174,  323,  342. 

compensation  in  case  of,  I.  312,  316. 

(See  Title,  Partial  Failure,  ^c,  Compensation.) 

whether  a  lease  is  avoided  by,  I.  275. 

in  representation,  whether  it  avoids  a  sale,  I.  325. 

and  fraud  in  part,  different  effect  of,  I.  334. 

in  case  of  agency,  I.  339. 

in  connection  with  want  of  consideration,  I.  354. 

gross,  I.  316,  359,  n. 

prevents  specific  performance,  I.  308,  436. 

money  paid  by,  action  to  recover,  II.  63. 

and  fraud,  distinction  between,  as  to  interest,  II.  149. 

definition  of,  I.  304. 

of  title,  I.  304. 

law  and  fact,  I.  304,  305  and  note,  323. 

and  surprise,  I.  304,  n. 

of  fact,  307. 

mode  of  relief  for,  I.  307. 

specific  performance  refused  for,  I.  308. 

must  be  strictly  proved,  I.  308. 

and  promptly  taken  advantage  of,  I.  308. 

as  to  quantity,  &c.,  effect  of,  I.  309. 

in  partial  want  of  title,  I.  312. 
30* 


354  INDEX. 

MISTAKE,  continued. 

rescinding  for,  I.  291,  292,  315 ;  11.  226  and  note. 

in  case  of  destruction  of  the  J)i'operty  before  sale, 
I.  315. 

vendor,  as  well  as  vendee  may  be  relieved  for,  I.  317. 

waiver  of  right  to  rescind  for,  I.  319. 

reforming  of  agreement,  &c.,  for  parol  proof  of,  I.  323. 
MONEY, 

had  and  received,  action  for,  I.  13  ;  II.  62. 

in  case  of  deposit,  I.  69,  98. 

paid,  action  for,  by  auctioneer,  I.  95,  99. 

had  and  received,  whether  interest  may  be  recovered  in  suit  for, 
I.  96;  n.  117. 
MONTHS, 

meaning  of  the  term,  I.  206. 
MORTGAGE, 

by  a  vendee,  effect  of,  I.  5. 

agreement  to  pay,  whether  within  the  Statute  of  Frauds,  I.  113, 
114.  ■• 

liability  of  a  trustee  in  connection  with,  I.  393,  n.,  395. 

power  of  sale  under,  II.  15,  n.,  16. 

whether  eviction  or  want  of  title  is  a  defence  to,  II.  89,  n.,  90. 
MORTGAGEE, 

and  mortgagor,  whether  parties  to  sale  are,  I.  2  and  note. 

purchase  by,  I.  389,  n.,  396. 
MORE   OR   LESS, 

effect  of  the  terms,  I.  232-235,  309,  313,  316,  318,  336. 
MOTION, 

in  equity,  what  may  be  tried  on,  I.  241. 

reference  of  title  on,  I.  249. 
MUTUAL   COVENANTS,  IL  39,  n.,  41,  n.,  286. 
MUTUALITY, 

of  contract,  L  19,  26,  29,  33,  216,  245  ;  IL  2. 

a  sufficient  consideration,  I.  298. 

specific  performance  requires,  I.  435  ;  II.  306. 

N. 
NEGLIGENCE, 

an  objection  to  specific  performance,  I.  436,  437. 


INDEX.  355 

NON  COMPOTES  MENTIS,  I.  350. 
NON-USER, 

title  depending  on,  11.  33. 
NOTE, 

for  price,  I.  36;  II.  71. 

deposit,  defence  against,  I.  98. 

price,  defence  to,  II.  71.  ' 

averment  of  consideration  of,  II.  71,  n. 

tender  of  deed,  whether  necessary  to  suit  on,  II.  71. 

want  of  title,  whether  a  defence  to,  11.  74. 

destruction  of  property  sold,  a  defence  to,  II.  75. 

judgment  against  vendor,         "  "         II.  78. 

partial  failure  of  title,  whether  a  defence  to,  II.  78,  83. 

fraud  of  vendor,  "  "         II.  79. 

incumbrances,  "  "         11.  79. 

in  case  of  the  vendee's  possession,  II.  80,  82,  83. 

indorsed,  whether  want  of  title  is  a  defence  to,  II.  84. 

effect  upon,  of  covenants  of  warranty,  II.  85. 
NOTICE, 

to  purchaser,  I.  1,  n.,  3,  271,  398. 

when  insufficient  for  rescinding,  I.  36. 

by  purchaser,  whether  necessary  to  stop  interest,  I.  43,  44,  46. 

of  revocation  of  license,  I.  134. 

(See  License?) 

to  purchaser,  in  case  of  part-performance,  I.  158. 

materiality  of  time,  how  affected  by,  I.  201,  204. 

of  defect  of  title,  effect  of,  L  223  ;  IL-91. 

to  purchaser  of  leasehold,  what  is,  I.  271. 

avoids  the  effect  of  misrepresentation,  I.  329. 

effect  of,  as  to  parties  to  suit,  II.  186. 

English  and  American  cases  relating  to,  I.  398,  n. 

and  registration,  connection  of,  I.  398,  n.,  399  and  note,  406,  n. 
fraud,  connection  of,  I.  398,  399  and  note. 

rules  of,  to  what  parties  applicable,  I.  399,  n. 

as  connected  with  dolus  mcdus,  I.  399,  n. 

of  a  parol  agreement  to  sell,  I.  400,  403,  404. 

purchaser  with,  from  one  without,  I.  400. 
without,  from  one  with,  I.  400. 

express  or  imphed,  I.  400,  407,  n. 


356  INDEX. 

NOTICE,  continued. 

constructive,  I.  405,  407,  n. 

before  payment,  I.  400. 

actual,  I.  401,  405,  n. 

sufficient  for  inquiry,  I.  401  and  note,  403,  n. 

suspicion  of",  I.  401. 

of  judgment,  I.  402. 

lease,  I.  402,  407,  409. 

deed,  I.  400,  n.,  402,  406,  n. 
arising  from  possession,  I.  403. 
of  defeasance,  I.  406. 
to  agent,  I.  406  and  note,  407,  n. 
of  unacknowledged  deed,  I.  406,  n. 
as  connected  with  consideration,  I.  406,  n. 
to  solicitor,  I.  406,  407. 

agent  of  both  parties,  I.  407,  408. 
whether  it  must  be  confined  to  the  same  transaction,  I.  408. 
from  whom,  I.  408,  409. 
reports  not  sufficient,  I.  409  and  note, 
in  case  of  landlord  and  tenant,  I.  409,  410. 
pendente  lite,  I.  411. 
decree,  whether,  I.  412. 
of  unregistered  judgment,  I.  411,  n.,  412,  n. 
pleading  of,  I.  415,  n. 
NURSERY, 

products  of,  whether  the  Statute  of  Frauds  applies  to,  I.  110. 


O. 

OFFER  AND   CONTRACT, 

distinction,  I.  14. 
when  sufficient,  II.  287. 
OPENING   OF   BIDDINGS,  II.  220. 


PAPER   SECURITIES, 

sale  of,  whether  Statute  of  Frauds  applies  to,  I.  112. 


INDEX.  357 

PARENT, 

and  child,  part-performance  in  case  of,  11.  270. 
PAROL, 

evidence,  I.  172. 

trust,  I.  374, 

contract,  part-performance  of,  I.  34,  n.,  57,  446  ;  II.  80. 

(See  Part-performance.) 
evidence  of  mistake,  I.  11,  12,  16,  323,  342. 

surprise,  I.  342. 
contract  of  party  deceased,  I.  60. 
contract,  not  binding  upon  lieir  of  vendor,  I.  62. 
evidence,  to  connect  diflferent  instruments,  I.  68,  69. 

as  to  sale  by  auction,  I.  92-94. 

in  case  of  fraud,  I.  93,  342. 

general  admissibility  of,  I.  102,  n. 
agreement  to  pay  incumbrances,  I.  113. 

taxes,  I.  14. 
evidence  of  price,  I.  25,  115. 

agreement  cannot  be  in  part,  and  in  part  written,  I.  120-122. 
sale,  only  voidable,  I.  123. 
license,  II.  265.  (See  License.) 

and  sealed  license,  revocable,  I.  135,  136. 
evidence  of  part-performance,  I.  145  and  note. 

not  admissible,  &c.,  to  explain,  «fec.,  a  writing,  I.  172. 

as  to  lease,  &c.,  I.  172,  173. 

to  resist  specific  performance,  I.  174. 

of  subsequent  agreement,  whether  valid,  I.  174. 

waiver  or  variation  of  contract,  I.  175  ;  II.  274,  278. 
evidence  of  collateral  circumstances,  I.  177. 
agreement,  waiver,  or  extension  of  time  by,  1. 196, 197,  199-201 ; 

II.  274,  277. 
evidence  as  to  leaseholds,  I.  281. 
waiver,  I.  300  ;  II.  91,  95,  96. 

of  tender,  II.  58. 
sale,  action  for  price  in  case  of,  II.  QiQ. 

effect  of  vendee's  possession  upon,  II.  80. 
whether  agency  may  be  by,  I.  64;  II.  257. 
agi-eement,  pleading  in  case  of,  I.  123,  452  ;  11.  311. 


358  INDEX. 

PART, 

title,  effect  of,  I.  27,  312 ;  II.  78,  83,  85-87  and  note,  88. 

to  leasehold,  effect  of,  on  the  sale,  I.  275. 
performance,  effect  of,  upon  remedy,  I.  34,  n. 

of  parol  agreement,  I.  57,  104,  n.  377 ;  11.  270. 
by  heir,  I.  62. 

payment  of  auction-duty  is  not,  I.  94,  154,  155. 
and  license,  connnection  of,  I.  125,  142. 
effect  of  in  law  and  equity,  I.  142. 

upon  claim  for  price,  I.  142,  143. 
takes   a  contract  out  of  the    Statute  of  Frauds, 

1. 145. 
may  be  proved  by  parol  evidence,  I.  145. 
is  founded  on  fraud,  I.  147  and  note,  151,  153. 
acts  merely  introductory  are  not,  I.  147,  156. 
whether  binding  upon  representative  of  one  de- 
ceased, I.  147,  n. 
remainder-man,  I.  147,  n. 
what  possession  constitutes,  I.  147-149. 
certainty  required  in  case  of,  I.  149,  157. 
in  case  of  partition,  I.  21. 
trust,  I.  152. 
execution  sales,  I.  152. 
payment  of  money,  whether,  I.  154,  445. 
in  case  of  lease,  I.  156. 
acts   of,  must  be  solely  referable  to  the  contract, 

I.  156. 
effect  of,  upon  a  purchaser  without  notice,  I.  158. 
doctrine  of,  in  the  United  States,  I.  158. 
not  applied  to  work  injustice,  I.  161. 
compensation  in  case  of,  I.  162. 
in  case  of  lease,  I.  284,  285. 
payment,  effect  on  specific  performance,  I.  445. 
PARTIAL, 

failure  of  title,  I.  231,  418. 

(See   Title,  Compensation.) 
fraud,  effect  of,  I.  334. 
title,  specific  performance  in  case  of,  I.  444. 


INDEX.  359 

PARTICULAR, 

of  objections,  to  title,  11.  69,  n. 

whether  sufficient  under  the  Statute  of  Frauds,  I.  122. 
tenants,  rights,  &c.,  of,  II.  193. 
PARTICULARS, 

bill  of,  when  required,  II.  200. 
PARTIES, 

joint,  rights  of,  as  to  price,  I.  38. 

to  contracts,  I.  52. 

to  suit,  whether  heirs  must  be,  I.  61. 

heir  and  executor,  I.  373,  434,  n. 
for  rescinding,  I.  301. 
to  sale  and  suit,  II.  188,  n.,  321. 
actions,  II.  180. 

whether  parties  to  the  contract,  II.  180,  184,  186. 
who  are,  seeking  the  aid  of  the  Court,  II.  180,  n. 
purchasers  at  a  Court  sale  are,  II.  323. 
in  case  of  assignment,  II.  181. 
joint,  IL  181,  182,  187,  188. 
multifariousness  as  to,  II.  182. 
in  case  of  a  fraudulent  conveyance,  II.  184. 

the  death  of  a  party  to  the  contract,  II.  1 84. 
devise,  II.  185.  > 

whether  agents  are  proper,  II.  185,  187. 
tenants         "  II.  185,  186. 

in  case  of  mortgage,  II.  186.  * 

notice  to  third  persons,  II.  186. 
partnership,  II.  187. 
husband  and  wife,  IL  188,  189,  191. 
infants,  II.  189. 
particular  tenants,  II.  193. 
tenants  in  tail,  II.  193. 

for  life,  IL  193. 
lunatics,  II.  194. 

principal  and  agent,  II.  195.  • 

PARTITION, 

part-performance  in  case  of,  I.  151. 
PARTNERS, 

suit  by,  to  rescind,  I.  301,  302. 


360  INDEX. 

PARTNERSHIP, 

parties  to  suit  in  case  of,  II.  187. 
PATENT, 

defects  in  property  sold,  L  346. 
PAYMENT, 

whether  agent  can  receive,  I.  38. 

into  Court,  of  purchase-money,  I.  50,  447,  451  ;  II.  238. 
deposit,  I.  99,  100. 

to  auctioneer,  I.  87. 

whether  a  part-perforraance,  I.  154. 

and  conveyance,  mutuality  of,  I.  217. 

what  necessary  to  rescinding  of  sale,  I.  300. 
PEARS, 

sale  of,  whether  valid  under  Statute  of  Frauds,  I.  105. 
PENALTY, 

or  stipulated  damages,  whether  a  contract  is  for,  I.  21-23,  n., 
24;  11.119. 

whether  a  deposit  is  a,  II.  128. 
PENDENTE  LITE,  I.  373. 

notice  to  purchaser,  I.  411 ;  II.  311. 

nil  innovetur,  I.  411,  412,  n. 
PERFORMANCE, 

what  is,  I.  32  ;  II.  93,  197. 

of  contract,  passes  estate  in  equity,  I.  144. 

by  vendor,  form  of  averring,  II.  59. 

substantial,  sufficient,  II.  93. 
PERMANENT   ERECTIONS,  &c., 

license  for,  I.  136. 
PERSONAL, 

property,  when  building  is,  I.  3. 

estate,  application  of,  for  purchase-money,  I.  6. 

to  the  party,  when  a  contract  is,  I.  24,  n. 

liability  of  agent,  I.  70. 

authority,  license  is  a,  I.  132,  134,  n. 

license  and  of  profit,  distinction,  I.  132,  n. 

representatives,  when  parties,  I.  373. 
PEW, 

sale  of,  whether  Statute  of  Frauds,  applies  to,  I.  109. 


INDEX. 


361 


PLACE, 

specific  performance  as  depending  on,  I.  430. 
(See  Jurisdiction.) 
I^LAN, 

construction  of  contract  by,  I.  169. 
PLAT, 

misrepresentation  by,  I.  328. 
PLEADING,  IL  197. 

in  action  for  deposit,  L  98. 
under  Statute  of  Frauds,  I.  123,  452. 
of  notice,  L  415,  n. 

in  relation  to  specific  performance,  I.  452. 
POLES, 

sale  of,  whether  Statute  of  Frauds  applies  to,  I.  111. 
POSSESSION, 

whether  purchaser  has  the  right  of,  I.  3. 

does  not  give  validity  to  an  illegal  purchase,  I.  4. 

of  vendee,  when  a  waiver  of  his  rights,  I.  29,  223-225,  227. 

451,  n. ;  IL  93,  95. 
suit  for,  before  payment,  I.  34. 
of  vendee  in  case  of  vendor's  death,  I.  60. 
interest  in  case  of,  I.  41 ;  II.  141,  150. 
efiect  of,  under  Statute  of  Frauds,  I.  145  ;  U.  80,  82,  83. 
what,  necessary  to  part-performance,  I.  147-149. 
whether  title  may  be  founded  on,  I   257,  258  ;  IL  270,  271. 
notice  of  title,  I.  403,  409. 

defeasance,  I.  406,  n. 
mixed,  is  not  notice,  I.  406. 
payment  in  case  of,  I.  447. 
efiect  of,  upon  an  action  by  the  vendee,  II.  Ill,  n. 

costs,  II.  165,  166. 
lapse  of  time  in  case  of,  IL  215. 
POTATOES, 

sale  of,  whether  the  Statute  of  Frauds  applies  to,  I.  110,  111. 
POWER, 

of  attorney,  construction  of,  I.  65. 
form  of,  IL  256. 
sale  in  mortgage,  title  under,  II.  15,  n.  16. 
VOL.  II.  31 


362  INDEX. 

PRACTICE, 

in  relation  to  specific  performance,  I.  452. 
PRESCRIPTION, 

none  in  case  of  license,  I.  128. 
PRESUMPTION, 

of  assignment  of  lease,  I.  257. 

title,  in  sale  of  leaseholds,  I.  267,  n.,  268,  269. 
rescinding,  I.  298. 
title,  II.  15,  n.,  30. 
PRICE, 

of  land  sold,  I.  23. 

to  whom  paid,  I.  53,  54,  57. 

in  case  of  husband  and  wife,  I.  57,  58. 

whether  auctioneer  may  receive,  I.  87. 

agreement  concerning,  whether  Statute  of  Frauds  applies  to, 
I.  112  and  note,  142,  143. 

necessary  to  sale,  I.  113. 

parol  evidence  of,  I.  115. 

may  be  fixed  by  arbitration,  I.  115,  116. 

liability  for,  as  depending  on  title,  I.  216  ;  II.  2. 

must  be  fixed,  I.  441,  442. 

suit  to  recover  back,  II.  61,  284. 

tender  of,  II.  68. 

notes,  &c.,  for,  II.  71. 

payment  of,  when  necessary,  II.  288. 

vendor  may  require  payment  of,  II.  313. 
PRINCIPAL   AND   AGENT,  I.  63,  64 ;  II.  195. 

(See  Agent.) 
PRINTING  OF   NAME, 

whether  sufficient  under  the  Statute  of  Frauds,  I.  117,  n. 
PRIVATE  AND  PUBLIC  SALES,  L  72. 
PRODUCTS  OF  THE  SOIL, 

whether  the  Statute  of  Frauds  applies  to,  I.  104. 
PROFITS, 

account  of,  in  case  of  rescinding,  I.  302. 
PROPOSAL  AND  CONTRACT, 

distinction,  IL  253,  263. 
PUBLIC, 

and  private  sales,  I.  72. 


INDEX.  363 

PUBLIC,  continued. 

grant  and  license,  distinction,  I.  131. 

trust,  sale  cannot  be  in  violation  of,  I.  386. 

policy,  contract  against,  I.  439. 
PUFFING,  I.  77,  n.,  78  ;  II.  217,  258. 
PURCHASE, 

money,  payment  of,  into  Court,  I.  50,  447,  451  ;  II.  238. 

and  lease,  distinction,  I.  263. 

for  valuable  consideration,  II.  202. 

money,  security  for,  II.  239. 
PURCHASER, 

when  bound  to  pay  interest,  I.  41. 

may  claim  interest,  when,  I.  46,  47. 

at  Court  sale,  becomes  a  party,  II.  323. 

Q. 

QUANTITY, 

deficiency  in,  effect  on  sale,  I.  232  ;  II.  77. 

effect  of  mistake  as  to,  I.  309. 

(See  Mistake.) 
QUANTUM  DAMNIFICATUS, 

issue  of,  I.  420,  433. 
QUID  PRO  QUO, 

specific  performance  requires,  I.  435. 
QUITCLAIM   DEED, 

whether  sufficient,  II.  45,  46. 

R. 

RATIFICATION, 

of  sale  by  principal,  I.  70,  338. 

to  trustee,  L  388,  390,  391. 

of  agency,  I.  407. 
RATE  OF  INTEREST,  I.  44. 
REASONABLE  TIME, 

license  continues  for,  I.  133. 

for  performance,  L  207,  220,  223  ;  IL  36,  37. 

sale  to  trustee  must  be  disaffirmed  in,  I.  390. 

question  of,  II.  215. 


364  INDEX. 

READINESS  TO  CONVEY, 

effect  of.  11.  4,  55,  5G,  197,  287. 

(See  Tender.) 
RECEIPT   FOR  PRICE, 

whether  evidence  of  contract,  I.  115. 
sufficient  under  the  Statute  of  Frauds,  I.  122. 
RECOVERY, 

title  by,  II.  21. 

rescinding  of  sale  for,  II.  278. 
REFORMING, 

of  deed  or  agreement  for  mistake,  I.  10,  321. 
fraud,  I.  344. 
REFERENCE, 

by  one  instrument  to  another,  whether  sufficient  under  the  Stat- 
ute of  Frauds,  I.  118,  120. 
of  title,  I.  248. 

when  made,  I.  248. 
upon  what  founded,  I.  248,  249. 
whether  made  on  motion,  I.  249. 
general  practice  as  to,  I.  252. 
costs  of,  II.  173,  and  note. 
REGISTRATION, 

American  practice  of,  I.  255. 

and  notice,  connection  of,  I.  398,  n.,  399  and  note,  406,  n. 
whether  the  maxim  ignorantia  legis,  &c.,  applies  to,  I.  399,  n. 
REMAINDER, 

part-performance  in  case  of,  I.  147,  n. 
sale  of,  I.  315,  361. 

(See  Expectancies.) 
REMAINDER-MAN, 

purchase  by,  a  trust,  I.  386. 
REMEDY, 

in  case  of  fraud,  I.  341. 

sale  by  trustee,  I.  391. 
REMEDIES,  I.  416. 
and  rights,  I.  416. 
in  equity,  I.  416. 

law  and  equity,  I.  416,  n.,  417  and  note;  II.  1,301,  302, 
310,  321. 


INDEX.  365 

REMEDIES,  continued. 

in  case  of  executed  conveyances,  I.  417  and  note,  418. 
equitable,  by  way  of  compensation,  I.  418. 

in  case  of  fraud,  I.  418,  n.,  419,  422,  n.,  425,  n. ;  II.  225. 
by  rescinding  a  sale,  I.  423. 
cancellation,  L  425. 
specific  performance,  I.  428. 
RENT, 

parol  evidence  as  to,  I.  172.         ^ 
specific  performance  in  case  of,  I.  434,  435. 
RENTS, 

and  profits,  when  vendor  is  liable  for,  I.  41. 
vendee         "  I.  47. 

loss  of,  after  purchase,  liability  for,  I.  44. 
how  far  an  incumbrance,  I.  236. 
false  affirmation  concerning,  1. 343  ;  II.  225,  231. 
and  profits,  account  of,  I.  452,  n. 
title  to,  n.  24. 

and  interest,  mutual  claim  for,  II.  141,  151-153. 
RENEWAL, 

covenant  for  must  be  certain,  I.  266. 
of  lease  by  trustee,  I.  386. 
REPUBLICATION  OF  WILL, 
effect  on  equitable  title,  I.  5. 

lands  contracted  for,  I.  8. 
REPRESENTATIVES, 

when  contract  passes  to,  I.  24. 
suit  by  or  against,  II.  184, 
REPRESENTATION  AND   CONTRACT, 

distinction,  II.  249. 
REPRESENTATIONS  OF  AGENT,  L  70. 
RESALE, 

of  property  bought  by  trustee,  I.  388,  397. 
by  Master  in  Chancery,  II.  218,  219,  223. 
RESCINDING,  L  288. 

(See  Mistake,  Fraud,  Partial  Title.) 
of  sale,  for  want  of  title,  I.  35,  223,  224,  226,  240,  290. 
whether  for  failure  to  convey,  I.  290. 

misdescription  of  property,  I.  291-295. 
31* 


366  INDEX. 

RESCINDING,  continued. 

of  sale,    when  notice  is  insufficient  for,  I.  36. 
interest  in  case  of,  I.  47,  51. 

of  auction  sale,  time  of,  I.  80. 

when  presumed,  I.  2!)8. 

construction  of  agreement  as  to,  I.  220. 

of  sale  of  leasehold,  I.  277. 

for  mistake,  I.  315.       (See  Mistake.) 
fraud,  II.  225.         (See  Fraud.) 
destruction  of  property  before  sale,  I.  315. 
incumbrances,  II.  147. 
fraud,  time  of,  II.  301. 

right  of,  may  be  lost  by  a  new  contract,  I.  300. 

what  payment,  necessary  to,  I.  300. 

mode  of,  I.  300,  301. 

which  party  has  the  right  of,  I.  301. 

forms  of  proceeding  for  the  purpose  of,  I.  301. 

profits  and  improvements  in  case  of,  I.  302. 

right  of,  when  waived,  I.  298,  333  ;  II.  301. 

and  specific  performance,  compared,  I.  358,  359. 

compensation  compared,  I.  422,  n.,  433,  436,  437,  441,  444  ; 
II.  231. 

in  equity,  I.  423. 

eflfect  of,  II.  2,  n.,  284. 

action  by  vendee  in  case  of,  II.  65,  67,  70. 

in  case  of  recovery  by  tenant  in  tail,  II.  78. 

bond  for  price  given  up  in  case  of,  11.  78,  n. 

after  judgment  for  the  price,  II.  89,  n. 

must  be  total,  II.  96. 

interest  in  case  of,  II.  148. 

whether  vendee  is  liable  as  lessee  in  case  of,  II.  317. 
RESERVED  BIDDING,  I.  79. 
RESTS  OF  INTEREST,  I.  49,  50. 
RESIGNATION  OF  TRUSTEE, 

sale  after,  I.  385. 
RETURN   OF   SHERIFF, 

whether  a  signing  within  the  Statute  of  Frauds,  I.  88,  n. 
REVOCATION, 

of  devise  of  land  contracted  for,  I.  6. 
will  by  sale,  I.  7-9. 


INDEX.  •)^57 

REVOCATION,  continued. 

of  will  of  purchaser,  whether  the  conveyance  is,  I.  7. 
license,  I.  108,  127,  129,  130,  134;  II.  268. 
REVERSION, 

purchase  of,  interest  in  case  of,  I.  45. 
sale  of,  I.  361. 

(See   Expectancies.) 
RIGHTS    AND    REMEDIES,  L  416. 

S. 
SALE, 

private  and  auction,  compared,  I.  72. 

of  distinct  lots,  whether  separate,  I.  76. 

need  not  be  in  writing,  at  common  law,  I.  101, 102. 

by  order  of  Court,  II.  216,  323. 

caveat  emptor  in  case  of,  II.  216. 
confirmation  of,  11.  217. 
effect  of,  upon  the  title,  II.  217. 
advertisement  and  notice  of,  II.  217,  n. 
resale  in  case  of,  II.  218,  219,  223. 
when  in  parcels,  II.  218,  219. 
by  whom  made,  II.  219. 
opening  of  biddings,  II.  220. 
misrepresentation  in,  II.  220. 
mistake  in,  II.  220,  221. 
remedy  or  surety  for  the  price,  II.  222. 
under  erroneous  decree,  II.  222. 
opening  of  decree  in  case  of,  II.  222. 
appeal  in  case  of,  11.  222,  223. 
SEAL, 

sale  does  not  require,  I.  101,  n. 
SEALED  INSTRUMENT, 

of  agent,  how  executed,  I.  67.' 
SECURITY, 

for  price,  what  sufficient,  I.  26. 
costs,  when  required,  I.  98. 
purchase-money,  II.  239. 
SEPARATE  LOTS, 
deed  of,  L  36. 


368  INDEX. 

SHERIFF'S  SALE, 

puHhig  at,  I.  80. 

whether  within  the  Statute  of  Frauds,  I.  188,  n. 
SIGNING, 

in  sale  by  auction,  I.  88  and  note. 

what  sufficient  under  the  Statute  of  Frauds,  I.  116,  117,  120. 

284  ;  II.  262. 
by  agent,  I.  284. 

one  party,  under  Statute  of  Frauds,  II.  189,  306-308. 
SLANDER  OF  TITLE,  II.  232. 
SLUICE, 

license  as  to,  I.  137. 
SOLICITOR, 

liability  of,  for  deposit,  I.  97. 
notice  to,  L  406,  409. 
SPECIFIC   PERFORMANCE,  L  417,  428  ;  IL  90. 

distinction  as  to  evidence  for  enforcing  or  resisting,  I.  92,  93, 174. 

parol  evidence  in  suit  for,  I.  174. 

laches  a  bar  to,  I.  180,  n. 

history  of,  I.  428. 

and  claim  for  damages,  compared,  I.  429  ;  II.  105,  251,  303,  304. 

right  of,  in  relation  to  real  property,  I.  429. 

jurisdiction  for,  as  depending  on  place,  I.  430  ;  II.  309. 

want  of  remedy  at  law,  II.  301. 
of  contract  in  what  form,  I.  430. 
as  connected  with  other  grounds  of  relief,  I.  431. 
refusal  of,  and  rescinding,  compared,  I.  358,  359,  433,  436,  437, 

441  ;  IL  331. 
in  part,  I.  433. 
requires  certainty  in  the  contract,  I.  434, 435  and  note,  440,  442. 

mutuality,  I.  435  ;  II.  189,  306,  313. 
is  matter  of  discretion,  I.  436  ;  II.  305. 

does  not  lie,  in  case  of  a  hafd  or  unreasonable  contract,  I.  436, 
437. 
nor  in  case  of  fraud,  I.  436-438,  451. 
mistake,  I.  436. 
negligence,  I.  436,  437. 
abandonment  of  contract,  I.  437. 
surprise,  I.  439. 


INDEX.  369 

SPECIFIC   PERFORMANCE,  continued. 

(iocs  not  lie  in  case  of  misrepresentation,  I.  437. 

a  doubtful  case,  II.  305. 
may  be  had,  of  a  losing  contract,  I.  438. 
whether  of  contract  against  public  policy,  T.  439. 
requires  adequate  consideration,  T.  439. 
of  extravagant  purchase,  I.  441. 

award,  I.  441. 
in  favor  of  the  vendor,  I.  443. 
requires  performance  by  plaintiff,  I.  443  ;  II.  313. 

title  in  the  plaintiff,  I.  443. 
barred  by  delay,  I.  443. 
in  favor  of  vendee,  I.  444. 
in  case  of  partial  title,  I.  444. 

compensation  in  connection  with,  I.  413,  440,  n.,  445. 
in  case  of  part  payment,  I.  445. 

performance,  I.  446,  449. 
disability,  II.  283. 
pleadings  and  practice  in  relation  to,  I.  452  ;  II.  310. 
executed  agi'eements,  I.  417,  n. 
liquidated  damages,  II.  126,  127. 
arbitration,  II.  134,  242. 
must  be  of  the  whole  contract,  II.  134. 
or  damages,  bill  for,  II.  138. 
whether  infant  can  claim,  II.  189. 
in  case  of  a  lunatic,  II.  307. 

husband  and  wife,  II.  191,  255. 
public  corporation,  II.  250. 
decree  for,  is  not  a  judicial  sale,  II.  311. 
STAKEHOLDER, 

auctioneer  is  a,  I.  49. 
and  agent,  distinction,  I.  69. 
STAMP, 

necessity  and  effect  of,  I.  101,  n.  ^ 

STATE, 

of  facts  upon  reference  of  title,  I.  248,  249. 
jurisdiction  for  specific  performance,  I.  430  ;  II.  309. 
STATUTE  OF  FRAUDS,  I.  101 ;  II.  260. 
whether  applicable  in  case  of  mistake,  I.  12. 


370  INDEX. 

STATUTE  OF  FRAUDS,  continued. 
contract  by  letters  under,  I.  15. 
part-performance  under,  I.  57,  446,  449. 

(See   Part-performance.) 
effect  of,  as  to  agency,  I.  68,  70. 
whether  applicable  to  auctions,  I.  88,  92,  93,  n. 
application  of  to  action  for  deposit,  I.  99. 
changes  the  common  law  as  to  verbal  sales,  I.  101,  102. 
English  and  American,  I.  102. 

effect  of  in  United  States,  I.  102,  n. 
construction  and  policy  of,  I.  102,  n. 
does  not  dispense  with  consideration,  I.  402,  n. 
distinction  between,  and  rule   as  to  parol  evidence,  I.  102,  n.. 

104,  n. 
words  of,  I.  103,  104. 

whether  it  requires  that  the  consideration  be  expressed,  I.  103. 
what  are  lands,  within  the,  I.  104. 
whether  growing  products  ai"e  within  the,  I.  104,  109,  and  note. 

trees,  I.  104. 

timber,!.  104,  110,  111. 

pears,  I.  105. 

grass,  I.  105,  110. 

turnips,  I.  105. 

wood,  I.  105,  n.,  108,  n.,  110. 

crops,  I.  105-107,  110. 

ore,  I.  108. 

flowing,  I.  108. 

pew,  I.  109. 

leasehold,  I.  109. 

potatoes,  I.  1 1 0, 1 1 1 . 

mulberry  trees,  I.  110. 

trees  to  be  transplanted,  I.  110. 

corn,  I.  110. 

herbage,  I.  110,  n. 

poles,  I.  111. 

improvements,  I.  112,  114. 

tenancy  at  will,  I.  112. 

paper  securities,  I.  112. 

bond,  I.  112. 


INDEX.  371 

STATUTE  OF  FRAUDS,  continued. 

whether  it  applies  to  the  price,  I.  112  and  note. 

a  contract  to  pay  incumbrances,  I.  113,  114. 

in  case  of  part-performance,  I.  114. 

whether  strictly  or  liberally  construed,  I.  116. 

written  admission  sufficient  under,  I.  116. 

description  of  property  sold,  under,  I.  116,  n. 

memorandum,  what  is  a  sufficient  under,  I.  372  ;  II.   189,   262, 
306-308. 

signing,  what  is  a  sufficient  under,  I.  116,  120. 
by  party  to  be  charged  under,  I.  116. 
in  what  part  of  an  instrument,  I.  117,  121. 

whether  a  deed  undelivered  or  defectively  executed  is  a  sufficient 
compliance  with,  I.  117,  118  and  note. 

bond,  when  a  compliance  with,  I.  118. 

execution  by  agent,  when  a  compliance  with,  I.  118. 

reference  by  one  instrument  to  another,  whether  a  compliance 
with,  I.  118-120. 

reference  by  one  instrument  to  another,  whether,  I.  118-120. 

letters,  whether         «  "         1.118,119. 

agreement  for  lease,  whether  valid  under,  I.  119,  121. 

requires  certainty  in  the  statement  of  the  agreement,  I.  120, 121. 

writing  of  auctioneer,  whether  sufficient  under,  I.  121. 

whether  a  receipt  is  sufficient  under,  I.  122. 
particular       "  "      I.  122. 

acceptance  of  proposal,  when  necessary  under,  I.  122,  123. 

pleading  under,  I.  123,  452  ;  II.  311. 

license  in  connection  with.     (See  License.) 

does  not  prevent  a  subsequent  parol  contract,  II.  274. 
STATUTE   OF   LIMITATIONS, 

title  by,  L  257. 
STIPULATED    DAMAGES,  IL  119. 

or  penalty,  whether  a  contract  is  for,  I.  23. 
STULTIFY   HIMSELF, 

whether  a  party  can,  I.  350,  n.,  352,  n. 
SUBSTANTIAL  PERFORMANCE,  I.  32,  231,  230  ;  IL  93. 
SUBSCRIBING  WITNESS, 

proof  by,  L  100. 
SUFFERANCE, 

tenancy  at,  and  license,  distinction,  I.  139. 


372  INDEX. 

SUFFICIENT   SECURITY, 

for  price,  what  is,  I.  20. 
SUGGESTIO  FALSI,  I.  327,  344,  n. 
SUPPRESSIO  VERl,  I.  327,  340,  344,  n. 
SURETY  FOR  PRICE, 

remedy  in  equity  against,  II.  222. 
SURPRISE,  I.  354,  n. 

parol  evidence  of,  I.  174,  342. 

prevents  specific  performance,  I.  437. 
SUSPICION  OF  NOTICE,  1.401. 


T. 

TENANCY  AND  LICENSE, 

distinction,  I.  139. 
TENANT, 

whether  a  pi'oper  party  to  a  suit,  II.  185,  18G. 
in  tail,  contract  of,  II.  193. 
for  life,       "       "     II.  193. 
TENDER, 

of  deed,  I.  26,  27,  35,  216,  218;  II.  286,  287,  312. 
with  covenants,  II.  313,  320. 

(See   Title,  Covenants.) 
by  vendor  or  purchaser,  II.  2,  3,  197. 
of  deed,  conditional,  11.  55,  74. 
waiver  of,  II.  58,  93. 
purchase-money,  II.  68. 

effect  on  interest,  I.  42. 
deed,  necessary  to  action  on  note  for  tlie  price,  II.  71. 
damages,  by  vendor,  II.  117. 

deed,  whether  necessary  to  recover  interest,  11.  153. 
TIMBER, 

whether  purchaser  may  cut,  I.  9. 
interest  in  case  of,  I.  45,  n. 

sale  of,  Statute  of  Frauds  as  to,  I.  104,  110,  111. 
TIME, 

of  valuation  as  to  price,  I.  24,  n. 

completing  sale,  effect  on  interest,  I.  42. 
rescinding  auction  sale,  I.  80. 


INDEX.  373 

TIME,  continued. 

of  executing  license,  I.  133. 
showing  a  good  title,  I.  219. 
performing  contracts  of  sale,  I.  180  ;  11.  35,  276. 

in  law  and  equity,  II.  321. 
when  of  the  essence  of  the  contract,  I.  180,  200,  219,  276  ;  II. 

204,  276. 
when  not  essential,  I.  189,  220  ;  II.  277. 
of  hearing,  decree,  &c.,  title  at,  is  sufficient,  I.  193,  220,  221  ; 

II.  279. 
though  originally  essential,  may  be  waived,  I.  196,  204,  221, 

222 ;  II.  206,  207,  212,  215,  278,  279. 
parol  extension  of,  II.  274,  277,  278. 
materiality  of,  how  affected  by  notice,  I.  201,  204. 
of  delivering  abstract  of  title,  I.  204,  206. 
deterioration  of  property  arising  from  lapse  of,  I.  205. 
construction  of  contract  in  reference  to,  I.  206  ;  II.  281. 
reasonable,  allowed  for  performing  contract,  I.  220. 
rescinding  presumed  from  lapse  of,  I.  298. 
of  avoiding  sale  for  fraud,  I.  333,  426  ;  II.  301. 
effect  of,  upon  the  sale  of  expectancies,  I.  367. 
of  disaffirming  sale  to  trustee,  I.  390,  393. 
in  reference  to  specific  performance,  I.  443. 
•     allowed  for  making  title,  II.  35. 

of  performance,  as  affecting  construction  of  covenants,  II.  40,  n. 

action  by  vendee,  II.  68. 
is  a  question  of  law,  II.  215. 
TITLE,  I.  208  ;  II.  281,  313,  320. 

conveyance  of,  in  connection  with  the  price,  I.  26,  29  ;  II.  2. 
rescinding  for  want  of,  I.  35. 
want  of,  effect  on  interest,  I.  42. 
in  case  of  husband  and  wife,  I.  58,  59,  216  ;  II.  31. 
bond  for,  claim  of  heirs  upon,  I.  62. 
not  involved  in  plea  of  license,  I.  126. 
mutuality  of  contract  as  to,  I.  216  ;  II.  2. 
does  not  pass  till  acceptance  of  deed,  I.  218. 
time  of  showing,  I.  219  ;  11.  35,  209. 
waiver  of  objection  to,  I.  221,  223,  227. 
equitable,  whether  sufficient,  I.  227,  228  ;  II.  18,  29. 
VOL.  II.  32 


•374  •     INDEX. 

TITLE,  continued. 

abstract  of,  duty  of  vendor  as  to,  I.  226,  228. 
partial  failure  of,  I.  231,  312 ;  II.  73,  83,  85-87  and  note,  88. 
when  not  an  objection,  I.  231. 
compensation  for,  I.  235. 
when  it  avoids  the  sale,  I.  240. 
whether  vendor  can  avail  himself  of,  I.  246. 
reference  of,  I.  248. 

(See  Reference,  8fc.) 
of  vendor  must,  in  general,  be  good,  I.  208,  217,  231. 
cloud  on,  effect  of,  II.  285. 
doubtful,  I.  210,  222,  435,  n. ;  11.  15,  21,  23. 
costs  in  case  of,  II.  161  and  note,  174. 
what  is,  I.  211. 
right  to  a  good,  is  given  hy  law,  I.  211. 
a  good,  marhetable,  whether  sufficient,  I.  212  ;  II.  162,  166. 

when  not  necessary,  I.  214. 
founded  on  long  possession,  whether  sufficient,  I.  212,  215  ;  II. 

30,  31,  33,  34. 
vendor's  obligation  as  to,  when  fulfilled  by  giving  a  deed,  I.  213, 

222  ;  11.  6-10,  18,  44. 
coming  from  a  third  person,  whether  sufficient,  II.  281,  283. 
in  case  of  destruction  of  the  property,  I.  214. 
grounds  of  exception  to,  I.  215  ;  II.  21. 
alienage,  whether  an  objection  to,  I.  215,  222. 
infancy,         "  "  "       I.  215. 

decree  of,  in  another  state,  effect  of,  I.  216 
whether  a  contract  for  a  deed  requires  a,  II.  6-10,  18,  44. 
requisites  and  elements  of,  II.  14. 
under  power  of  sale,  II.  15,  n.,  16. 
burden  of  proof  as  to,  11.  17. 

paper  title,  whether  the  law  requires,  I.  212,  215  ;  II.  17. 
parol,  whether  sufficient,  II.  17. 
legal,  whether  a  vendor  must  make,  II.  18. 
by  deed,  objections  to,  II.  21. 
recovery,  11.  21. 

destruction  of  contingent  remainder,  II.  21. 
devise,  II.  21. 
derived  from  an  heir,  II.  23. 


INDEX.  376 

TITLE,  continued. 

derived  from  personal  representatives,  II.  24. 

to  leaseholds  and  rents,  II.  24. 

as  affected  by  a  judgment  against  the  vendor,  II.  27,  48. 
suit  "  II.  28. 

bankruptcy,  II.  28. 
insolvency,  11.  29,  n. 

presumption  of,  11.  230. 

by  lapse  of  time  and  limitation,  11.  30. 

derived  from  an  infant,  II.  32. 

depending  on  non-user,  II.  33. 

miscellaneous  objections  to,  11.  33. 

under  act  of  parliament,  II.  34. 

abstract  of,  how  verified,  II.  34. 

how  verified  by  title-deeds,  II.  34,  35. 

plaintiff  seeking  specifi-c  performance  must  prove,  I.  443. 

effect  of  executory  contract  upon,  I.  1,  450,  n. ;  II.  252. 

in  connection  with  remedies,  I.  1. 

assumpsit  to  try,  II.  61  and  note. 

whether  a  vendor  must  show,  in  an  action  on  a  note  for  the 
price,  II.  74. 

want  of,  whether  a  defence  to  a  mortgage,  II.  89,  n.,  90. 

vendor  cannot  object  his  own  want  of,  II.  92. 

slander  of,  II.  232. 

liability  of  attorney  as  to,  II.  236. 
TITLE-DEEDS,  L  255. 

English  and  American  practice  as  to,  I.  255. 

production  of,  L  255,  259-261 ;  IL  35,  241. 

facts  stated  in,  must  be  proved,  I.  255,  256. 

covenant  for  production  of,  I.  256  ;  II.  37. 
*  copies  of,  when  required,  I.  256. 

destruction  of,  vendor's  duty  in  case  of,  I.  257  ;  II.  162. 

not  always  necessary,  I.  257. 
TRAP-AUCTION,  I.  77,  n. 
TREES, 

sale  of,  whether  within  the  Statute  of  Frauds,  I.  104,  110  ; 
IL  260. 

license  to  take,  I.  133,  135. 


376  INDEX. 

TRESPASS, 

action  of,  not  sustained  by  a  license,  I.  125. 
TRUST, 

part-performance  in  case  of,  I.  152,  377. 

public,  sale  in  violation  of,  I.  38 G. 

claim  for  specific  performance  in  case  of,  I.  431. 

sale,  &c.,  in  violation  of,  I.  369. 

purchases  in,  exception  of  from  Statute  of  Frauds,  I.  374. 

parol,  I.  374. 

arising  from  agency,  I.  3G9. 

violation  of,  in  connection  with  other  reasons  for  avoiding  a  sale, 
I.  370. 

and  agency  compared,  I.  70,  372,  373. 

effect  of  part-performance  in  case  of,  I.  377. 
TRUSTEE, 

cannot  purchase  the  trust  property,  I.  374. 

in  case  of  attorney  and  client,  1.  398. 

representatives  of  parties  deceased,  I.  383. 

for  purchaser,  vendor  is,  I.  4,  5. 

rights  and  liabilities  of,  I.  63. 

infant,  conveyance  by,  II.  189. 

sale  to,  after  resignation,  I.  385. 

renewal  of  lease  by,  I.  381. 

purchase  of  incumbrance  by,  I.  366. 

discharge  "  1. 387,  n. 

remainder-man,  purchasing  is  a,  I.  381. 

party  holding  an  ofRce  in  church  or  state  is  a,  I.  386. 

attaching  officer  is  not  a,  I.  386,  n. 

administrator  is  a,  I.  387. 

purchase  by,  is  only  voidable,  I.  387,  388,  n. 

may  be  ratified,  I.  388,  390,  391.  • 

improvements  made  by,  after  purchasing,  I.  388. 

purchase  by,  strangers  cannot  avoid,  I.  388,  n.,  389. 

resale  of  property  sold  to,  I.  388,  397. 

cannot  himself  avoid  the  purchase,  I.  389. 

purchase  by,  at  auction,  I.  389. 

whether  one  can  purchase  from  another,  I.  389,  n. 

may  occupy  the  estate,  I.  389. 

sale  to,  at  what  time  disaffirmed,  I.  390,  393. 


INDEX.  377 

TRUSTEE,  continued, 

sale  to,  is  good,  in  favor  of  a  bond  fide  purchaser,  I.  39 1. 
remedy  in  case  of,  I.  391. 
good  in  a  bond  fide  purchaser,  &c.,  I.  391. 
3(ile  to,  remedy  in  case  of,  I.  391. 

general  disabilities  of,  in  relation  to  the  trust  estate,  II.  393,  n. 
in  connection  with  mortgages,  I.  393,  n., 
395. 
may  purchase  after  the  trust  has  ceased,  I.  394. 

or  under  proceedings  prior  to  the  trust,  I.  395. 
whether  one  partner  is  a,  for  anothei',  I.  395,  n. 
purchase  by,  may  be  valid,  if  the  cestui  has  consulted  a  third 
person,  I.  305. 

or  if  the  property  is  not  really  the 
cestui's,  I.  395. 
assignee  of  bankrupt  is  a,  I.  395. 
for  creditors,  purchase  by,  I.  396. 
costs  against,  in  case  of  purchase  by  him,  I.  397. 
decree,     "  "  *•'  "  I.  397. 

TURNIPS, 

sale  of.  Statute  of  Frauds  as  to,  I.  105. 

U. 
UNCERTAINTY, 

as  to  parties,  I.  52. 

in  agreement,  under  Statute  of  Frauds,  I.  120,  121. 

prevents  specific  performance,  I.  434,  440,  442. 
UNCONSCIONABLE  CONTRACT,  I.  358,  375. 
UNDERWOOD, 

sale  of,  Statute  of  Frauds  as  to,  I.  105. 
UNDUE  INFLUENCE, 

what,  I.  378,  n. 
UNREASONABLE  CONTRACT, 

no  specific  performance  of,  I.  436. 
UNREGISTERED  DEED, 

and  executory  contract,  compared,  I.  403. 
UPSET    PRICE,  L  73,  n.,  74. 
USE  AND  OCCUPATION, 

action  for,  between  vendor  and  vendee,  II.  97,  187,  188,  316. 


878  INDEX. 

USE    AND   OCCUPATION,  continued. 

action  for,  by  vendor  against  vendee,  II.  97,  lOU. 

purchaser  against  a  third  person,  II.  1U(». 
vendor,  II.  TOO. 
USUAL  COVENANTS, 

what,  I.  273.  • 

USURY,  I.  50. 


VACANT  LAND, 

purchase  of,  interest  in  case  of,  I.  42  ;  II.  1-53. 
VARIANCE, 

in  bill  to  rescind,  I.  425,  n. 
VENDOR, 

devise  by,  I.  7. 

when  liable  for  interest,  I.  47. 

liability  of,  for  deposit,  I.  98. 

abandonment  of  contract  by,  I.  98. 
VENDEE, 

recovery  of  purchase-money  by,  II.  61. 
VERBAL  AUTHORITY  OF  AGENT,  I.  64  and  note. 
VOIDABLE, 

parol  sale  is  only,  I.  123. 

purchase  by  trustee  is  only,  I.  387. 


W. 

WAIVER, 

of  vendee's  rights  by  possession,  I.  29. 

condition,  I.  33. 

tender  of  deed,  I.  37. 
parol,  L  175,  300  ;  IL  91,  95,  96. 

of  time  of  performance,  L  196,  201,  204,  206  ;  IL  206,  207,  212, 
215,  278,  279. 

objection  to  title,  I.  221,  223. 

title  to  leasehold,  by  purchaser,  I.  272. 
parol,  in  case  of  lease,  I.  282,  283,  284. 
of  right  to  rescind,  I.  298,  333,  426. 


INDEX.  37 9 


WAIVER,  continued. 

of  right  to  rescind,  for  mistake,  I.  319. 
want  of  mutuality,  I.  435,  436. 
tender,  II.  58. 

right  of  vendor  and  vendee,  II.  93. 
WARRANTY, 

by  auctioneer,  parol  evidence  of,  I.  93. 

whether  a  plan  is  a,  I.  1 69. 

and  affirmation,  distinction,  I.  346. 

deed,  covenant  for,  II.  46  and  note,  47,  48,  79. 

covenants  of,  note  in  case  of,  II.  85. 
WASTE, 

who  may  prevent,  II.  217. 
WAY, 

license  for,  I.  140. 
WIFE,  (See  Husband,  Sfc.) 

when  agent  of  the  husband,  I.  58,  59. 
WILD  LANDS, 

contract  concerning,  time  of  performing,  I.  181. 
WILL, 

title  under,  L  258-260  ;  II.  21. 
WOOD, 

sale  of,  Statute  of  Frauds  as  to,  I.  105,  n.,  110. 


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